Lords Sitting of 3 December 1987

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Rochester): The LORD CHANCELLOR on the Woolsack.
Lord Hemingford—Took the Oath.

Nurses: Loss to NHS
Baroness Cox: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to reduce the loss of qualified nurses from the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, central initiatives include a joint National Health Service/Department of Health and Social Security working group on equal opportunities for women which is aiming to find better ways of retaining existing staff. The Nursing and Midwifery Staff Negotiating Council is reviewing the nursing clinical grading structure with the aim of making a more flexible structure which can recognise individual skills and responsibility. The regional health authority chairmen have commissioned a study to examine factors influencing recruitment and retention and to suggest improvements. A career development project group has been set up to examine the scope for more attractive career goals for nurses.
Baroness Cox: My Lords, I thank my noble friend for that encouraging reply. However, it is only partially encouraging, given the size of the problem. Is he aware that at present 30,000 nurses are leaving the National Health Service each year and that 6,000 student nurses leave before completing their training? Very often they leave because of low pay, poor conditions of work and low morale. Can the Minister say whether there is any substance in the reports in several of today's newspapers concerning proposed increases in nurses' pay?
Lord Skelmersdale: My Lords, the figure of 30,000 qualified nurses leaving the health service every year is, I am advised, substantially correct. However, that must be seen against the background of an increase in the total number of nurses of 53 per cent. over 1981. It is frequently claimed that one-third of student nurses fail to complete their training. I am advised that that is not true. In England the figure is 21 per cent. wastage. I therefore do not understand where the Royal College of Nursing obtains its figure of 6,000. My figures suggest that the number is of the order of 4,800.
Lord Ennals: My Lords, are we not seeing a major crisis within the National Health Service, with health authorities in every region short of nurses, not because there is a shortage of nurses but rather
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because there is a shortage of funds? In London the nurse shortage approaches 25 per cent. and according to the Auditor General half of all operating theatres are closed because of staff shortages. Is that not failing the National Health Service and the public that it is designed to serve?
Lord Skelmersdale: My Lords, I have pointed out to the House before that one cannot conjure nurses out of thin air. I accept that there are some shortages in some specialties. There are also shortages in some geographical areas and London has a particular problem.
I apologise for not answering the second part of the noble Baroness's supplementary question. The report in today's Sun is pure speculation.
Lord Winstanley: My Lords, is it not high time that we looked closely at the problem of living accommodation for nurses, bearing in mind the number of occasions on which nurses are attacked on the streets on their way to duty during unsocial hours? Is the Minister aware that on a number of occasions when a London teaching hospital sought to appoint somebody from the provinces to a senior nursing post, that person, male or female, has had to turn the post down because he or she cannot find affordable accommodation? Should we not make an effort to restore some of the nurses' homes which I believe were sold off or used for other purposes?
Lord Skelmersdale: My Lords, the National Health Service has been given the freest reign in retaining nurses' accommodation. Clearly we recognise that especially in areas of high-cost housing the ability to offer affordable residential accommodation of an acceptable standard is an extremely useful adjunct to recruitment and retention of staff. We are therefore reviewing the availability of accommodation and the measures which might be taken to assist staff to enter the private housing market. I am aware that some hospitals are currently revamping or building accommodation for nurses. That will help to solve that particular problem.
Baroness Lane-Fox: My Lords, is the Minister aware—I am sure that he is—that many district health authorities are freezing recruitment of nurses below establishment? That causes great pressure on working nurses and deters those who might be considering coming back.
Lord Skelmersdale: Yes, my Lords. I am aware that some district health authorities have taken that step. However, when one is a manager in such circumstances—which are very difficult indeed—one has to balance the number of beds with the number of staff.
Lord Wallace of Coslany: My Lords, is the Minister aware that thousands of fully trained nurses are leaving the National Health Service for the private sector, the United States, Arab countries, Australia and so on? Is he also aware that those nurses have been fully trained and have gained their experience in the National Health Service at the taxpayers' expense? Will he consider passing to his right honourable friend the suggestion that it is about time a levy was made on the private sector and on

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recruiting agencies so that the British taxpayer can recoup some of the money lost in training nurses when they leave the service to go elsewhere?
Lord Skelmersdale: My Lords, with great respect, I do not think that so long as nurses remain in this country the money is wasted. It does not matter either to me or to my right honourable friend where nurses practise in this country so long as they do practise.
Noble Lords: Oh!
Lord Skelmersdale: Having said that, a study of the movement of nurses and nursing skills between the two sectors estimated that about 1,400 nurses a year join the private sector from the National Health Service. Naturally nurses, like anyone else, are free to seek employment where they choose. We do not intend to restrict that basic right. However, we are currently considering ways in which the private sector's contribution to the training of health care professionals can be expanded. Our aim is to increase the total number of skilled staff available both to the National Health Service and to the private sector.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that the answer is to offer better pay and better conditions?
Lord Skelmersdale: My Lords, it was this Government who set up the Nurses and Midwives Review Body and who have accepted every one of the four recommendations which it has proposed since then. That body will be reporting in about March of next year and we shall carefully consider what it says.
Lord Elton: My Lords, when the community charge is brought into effect, will my noble friend undertake that in view of the high standing of the profession of nursing the Government will either pay student nurses a full-time working wage or treat them as students as regards the charge?
Lord Skelmersdale: My Lords, as far as pay is concerned, my noble friend will understand that neither I nor my right honourable friend the Prime Minister can make any guarantees until the Nurses and Midwives Review Body has reported. However, I should point out that starting salaries for student nurses are considerably higher than student grants and that overall the real income of nurses has increased by 30 per cent. since 1979; in real terms, it fell by 21 per cent. in the five years up to 1979. That demonstrates the Government's commitment to maintaining nurses' living standards.
Lord Annan: My Lords, will the noble Lord tell the House whether the committees to which he referred in his Answer to the Question have been given a deadline to report? In a matter of such urgency is it not desirable that there should be a deadline? Can we be assured that when they have reported we shall not be told, as we were in answer to a Question concerning the Severn Barrage the other day, that a further in-depth study will be required?
Lord Skelmersdale: My Lords, I was not present to hear my noble friend's answer as regards the Severn Barrage. However, there is absolutely no delay in the reports that I have mentioned. The Government will take the quickest action on their recommendations once these bodies have reported.
Lord Carter: My Lords, does the Minister agree that it would improve the morale of nurses and help to reduce the loss if, for example, a great hospital like the Great Ormond Street Hospital for Sick Children did not have to go out with a begging bowl in order to raise £30 million for urgent rebuilding? I believe that the Government have spent considerably more than £30 million on the advertising campaign for the flotation of the BP share issue.
Lord Skelmersdale: My Lords, I think the noble Lord is trying to address two different problems. What I am trying to address today is the problem of recruitment and retention of nurses, and I do not believe that the hospital building programme has anything to do with that.
Lord Leatherland: My Lords, does the Minister agree that one of the reasons why nurses leave their posts is in order to get married? And very good wives they make!
Lord Skelmersdale: My Lords, I do not know whether the noble Lord speaks with more experience than I do on this particular matter. However, I am advised that some 30,000 nurses leave the profession each year. That figure includes over 2,000 staff who are retiring and those who are leaving to have a family. About 10,000 return after breaking service, and the balance is made up by the output of the training schools; namely 22,000 in 1986.
Viscount St. Davids: My Lords, as one who attempts to be a citizen of the world (as I did when I was a member of the Labour Party, but it seems to have turned from that opinion of late) may I ask whether my noble friend agrees that it is a splendid thing that we provide trained nurses for other nations which are not so well equipped? That is a situation in which we should rejoice rather than be sorrowful that the nurses are going elsewhere.
Lord Skelmersdale: My Lords, I find that a very difficult question to answer. As someone who did voluntary service overseas in a third world country, I agree with the noble Viscount. As regards nursing recruitment from this country to places like Australia and the United States, I am afraid that I disagree with him.

Overseas Assets: Revenue
3.13 p.m.
Baroness Lane-Fox: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the United Kingdom's holding of overseas assets and how much revenue is derived from these assets.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, the level of net overseas assets held by United Kingdom residents increased to £114 billion at the end of 1986, second only to Japan's. These assets yielded annual net earnings of over £44½ billion in 1986.
Baroness Lane-Fox: My Lords, in thanking my noble friend for that very heartening reply may I ask this question? Is it not the case that our overseas assets and trade in services are making an increasingly important contribution to the balance of payments of the United Kingdom?
Lord Brabazon of Tara: My Lords, my noble friend is quite right. In 1986 our invisible earnings were the largest in the world with a surplus of £7·75 billion in the year annualised for the first half of 1987. The prospects are equally good in the performance of invisible earnings again this year. The surplus is expected to rise further to £8·5 billion in 1988.
Lord Bruce of Donington: My Lords, the noble Lord may not be able to give the answer to my question now. If I put down a Question for Written Answer, can the noble Lord split the various assets and revenues into the countries from which they emanate so that we can get some idea as to the spread?
Lord Brabazon of Tara: My Lords, if the noble Lord puts down a Question for Written Answer to that effect, I shall do my best to find the answer. At the moment, I cannot say whether those figures are available.
Lord Gladwyn: My Lords, may it not have been wiser to invest a substantial proportion of the billions emanating from North Sea oil in the rehabilitation of our industries and major towns in this country rather than investing it in overseas assets? The value of these assets is decreasing by leaps and bounds.
Lord Brabazon of Tara: My Lords, a good deal of money has been invested in the rehabilitation of our industries. Investment in manufacturing industry is currently at a very high level. The overseas assets now held by citizens of the United Kingdom are extremely valuable and they will be very useful in the years to come.
Lord Peston: My Lords, assuming I have done the sums correctly in my head, is it the case that these overseas assets are earning less than 4 per cent. per annum in real terms? Is that not below what one would expect the normal rate of return to be from investment in British industry?
Lord Brabazon of Tara: My Lords, the yield of £4·5 billion annualised on the first half of 1987 is expected to rise to £5·2 billion. I do not believe that is a bad return on investments compared with what can be obtained in the United Kingdom.
Viscount Montgomery of Alamein: My Lords, is my noble friend aware of the old adage that trade follows
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investment? Therefore, the real value of these investments is far greater than the return indicated by the noble Lord, Lord Peston. An enormous amount of trade is derived from the fact that we have investments overseas. People travel back and forth and generate that activity.
Lord Brabazon of Tara: My Lords, my noble friend is right. In my answers I have tried to imply the importance that we attach to these assets.
Lord Hatch of Lusby: My Lords, can the noble Lord tell the House what is the foreign investment in this country in comparison with the overseas assets of the citizens of this country to which he has just referred?
Lord Brabazon of Tara: My Lords, the figures that I have been giving are net assets. That is overseas assets with overseas liabilities deducted. I am not sure whether I have available the two figures which make up the net assets which I have given.
Lord Hatch of Lusby: My Lords, that does not answer the question. I was not talking about net assets overseas. I was asking the noble Lord whether he can tell the House what is the figure of foreign investment in this country in comparison to overseas assets held by citizens of this country?
Lord Brabazon of Tara: My Lords, I now have the figures. The gross overseas assets held by the United Kingdom were £731 billion. Gross liabilities amount to £617 billion. That answers the question from the noble Lord.

European Consumer Affairs Council
3.18 p.m.
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what items are to be discussed at the next meeting of the European Consumer Affairs Council and what is the present position of the draft toy safety directive.
Lord Beaverbrook: My Lords, the Danish Presidency has announced that it intends to hold a European Consumer Affairs Council on 18th December. The agenda is likely to include the draft toy safety and unit pricing directive, consideration of the Commission's report on the integration of consumer policy into other areas of Community policy and consumer participation in the setting of EC standards. The Government hope that there will be substantial discussion at that Council of the draft toy safety directive.
Baroness Burton of Coventry: My Lords, is the Minister aware that that satisfactory Answer will give much encouragement to consumers and consumer organisations, and that we shall wait with some hope

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what transpires on 18th December? As regards the setting up of standards in the European Community, can the Minister say whether the Secretary of State has had time to look at the voluntary codes of practice and the inefficiency of their operation between member states of the Community? If not, would the Minister do so?
Lord Beaverbrook: My Lords, the noble Baroness will know that codes of practice consist of recommendations on good accepted practice. In general, the use of standards is preferred because they lay down requirements and thereby remove uncertainty. The Government are committed to a policy of encouraging the harmonisation of standards throughout the Community with the aim of removing technical barriers to trade. I believe that my noble friend the Secretary of State is taking this matter very seriously.
Lord Molloy: My Lords, can the noble Lord say that codes of practice by themselves concerning this poignant question of toys which kill, damage and harm children are quite insufficient? Can the Minister assure the House that in order to defend British children there will be immediate legislation following the recommendations?
Lord Beaverbrook: My Lords, I agree with the noble Lord that there is no place for voluntary codes in health and safety legislation.
Baroness Fisher of Rednal: My Lords, will the Minister ask his colleague when he goes to the EC to draw the attention of EC Ministers to the lion mark which the toy and hobby manufacturers have launched today? That mark is to ensure that toys manufactured in this country bearing the mark conform to all BSI standards on toy safety; and he may wish to recommend it to other members of the EC.
Lord Beaverbrook: My Lords, the noble Baroness raises a very important point and we shall pay it considerable attention.
The Earl of Lauderdale: My Lords, does not my noble friend agree that it is a very satisfactory day when the noble Baroness, Lady Burton, confesses herself to be satisfied with an Answer from the Government Front Bench?
Lord Beaverbrook: My Lords, we all very much respect the noble Baroness for the care and trouble that she takes in these matters.
Baroness Ewart-Biggs: My Lords, can the Minister say whether the Government will agree to the toy safety directive at the meeting on 18th December? Can he also say what steps the Government are taking to ensure that the British consumers' views of the EC proposals on the harmonisation of VAT tariffs are adequately expressed at Community level?
Lord Beaverbrook: My Lords, on the toy safety directive, an amended draft proposal was circulated
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in October of this year and it reflects the stage reached at the last Consumer Council meeting. In turn, that takes account of the European Parliament's opinion on 9th July 1987. Therefore, we hope that the matter is moving towards a conclusion.
The European Commission has mandated the European Committee for Standardisation to prepare harmonised European standards in areas covered by the essential requirements. The United Kingdom is represented in the CEN by the British Standards Institution, which takes account of the view of government, industry and consumers in formulating the national position.
Baroness Burton of Coventry: My Lords, concerning the European child safety campaign in 1988, can the Minister say what the planned contribution of the Government will be? Am I not correct in assuming that this matter may arise at the forthcoming meeting of the Council on 18th December?
Lord Beaverbrook: My Lords, it is perhaps too early to say how far this country might be able to support the campaign as at present envisaged by the Commission. All member states expressed reservations about the original proposals, but I understand that discussions between member states and the Commission have resulted in an improved set of proposals. The Commission's proposals will be considered carefully when they are presented to Ministers. I believe that the subject of the child safety campaign may well be raised at the meeting on 18th December.
Lord Molloy: My Lords, what we are primarily talking about is British children who have toys which may maim or even kill them. Therefore, I again ask the Minister whether there is a possibility, after our Government have made every possible examination, that the relevant legislation will be introduced not in the European Community but in our British Parliament.
Lord Beaverbrook: My Lords, I attempted to answer the noble Lord earlier. I shall look carefully at what he said and come back to him in writing.

Duty-Free Trading and the EC
3.24 p.m.
Lord Orr-Ewing: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the implications for employment, they will oppose any EC proposals, ahead of harmonisation, that end all or part of duty-free trading.
Lord Brabazon of Tara: My Lords, the Government have no plans to end all or part of duty-free trading. My right honourable friend the Chancellor of the Exchequer made clear that discussions within the Economic and Finance

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Council of the European Communities were based on its acceptance of the continuing existence of duty and tax free facilities as long as fiscal frontiers remain within the European Community.
Lord Orr-Ewing: My Lords, I thank my noble friend for that very satisfactory and reassuring reply, but do the Government accept that any proposal to end any part of internal EC duty-free trading is not a health issue but a fiscal measure and therefore requires unanimous agreement by the Council of Ministers?
Lord Brabazon of Tara: My Lords, my noble friend is correct. As a fiscal measure it will require unanimity among Ministers.
Lord Bruce of Donington: My Lords, will the Minister make it clear that the Government do not concede the implication contained in the Question addressed to him as regards "ahead of harmonisation"? Will he give the House an undertaking that there will be no government consent to harmonisation affecting the United Kingdom without due consideration being given to it by Parliament?
Lord Brabazon of Tara: My Lords, I can do little more than refer the noble Lord to what I said in my original Answer. My right honourable friend made clear that discussions within the Council of the Communities were based on its acceptance of the continuing existence of duty and tax free facilities as long as fiscal frontiers remain within the European Community.
Lord Bruce-Gardyne: My Lords, can my noble friend confirm that that Answer makes it clear that in the event of achieving our objective, as we understand it, of a single market in 1992, automatically and logically duty-free facilities will disappear?
Lord Brabazon of Tara: My Lords, that will be correct provided there is fiscal harmonisation at that time.
Lord Elton: My Lords, can my noble friend address himself to the other implication behind the Question—that there are EC proposals in consideration that any or all of duty-free trading should be abandoned before harmonisation?
Lord Brabazon of Tara: My Lords, my noble friend is perhaps referring to the Commission's suggestions to end the sale of duty-free tobacco as part of its initiative for reducing the incidence of cancer. No formal proposals have yet been made. Although action against cancer is being handled by health Ministers, finance Ministers will be dealing with detailed tax proposals. The wider economic implications are being kept in mind.
Lord Elton: My Lords, does my noble friend accept that if there are to be penalties in this area, it is best to attack areas which are carcinogenic?
Lord Brabazon of Tara: My Lords, I can add little to what I have said.

The Christmas Recess
Lord Denham: My Lords, it may be for the convenience of the House if I announce that, subject to the progress of business, the House will rise for the Christmas Recess on Thursday 17th December and return on Monday 11th January. The House will sit at 11 a.m. on Thursday 17th December.

B.Cal/SAS Negotiations
3.27 p.m.
Lord Brabazon of Tara: My Lords, with the leave of the House, I will now repeat the Answer to a Private Notice Question in the form of a Statement currently being delivered by my right honourable friend the Secretary of State for Transport in another place. It is as follows:
"The Government's policy remains as set out in the 1984 airline competition policy White Paper." That is the end of the Answer.
Lord Underhill: My Lords, before I attempt to reply to that Statement, which gives no information, will the Minister amplify what it is about?
Lord Brabazon of Tara: My Lords, the Question asked for a Statement on the Government's policy in the light of the latest developments in the negotiations between B.Cal and SAS.
Lord Underhill: My Lords, does this mean that the Government have no intention of referring the matter to the Monopolies and Mergers Commission? If so, the House would like to know why not, in view of the adamant attitude that his noble friend the Secretary of State for Trade and Industry took over a reference to the MMC of the BA/B.Cal merger. Is there not as much public interest in this matter?
Are there not very serious implications for the British airlines industry in a merger between B.Cal and SAS? What effect would the new company have on the obtaining of routes? Would other countries accept that a company combining SAS and B.Cal was still a UK company? Will that not affect possible future bilateral agreements? Does the CAA have a view on this matter? Will it consider seriously whether a company with substantial foreign interests should retain B.Cal licences? Might not the new company (SAS/B.Cal) lessen the opportunities for independent companies in the United Kingdom to gain routes? That was a distinct possibility underlying BA's agreement with the MMC, under which it was to give up various routes. My last question is—some noble Lord said, "Hear, hear". We are discussing a serious matter. I am certain that the Minister, with his usual competence and with his interest in aviation matters, is only too pleased to

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answer this question. In view of the substantial state interest in SAS of three Scandinavian countries, are the Government beginning to change their view of public ownership?
Baroness Burton of Coventry: My Lords, I have become rather lost, what with the brevity of the Minister's Statement, for which I must thank him, and the length of the supplementary questions asked by the noble Lord, Lord Underhill. I do not know quite what to put a supplementary to. Did I understand the Minister to say that the Government were adhering to the policy that they had declared in 1984?
A Noble Lord: That is right.
Baroness Burton of Coventry: My Lords, I did understand that. As I understand it, government policy in 1984 was that we should establish a strong second-force airline in our aviation industry. At least, that was the CAA's intention, which the Government did not take up. Secondly, quite apart from the merits of any bids, is it not right that the shareholders of British Caledonian should decide with whom they want to fly? Surely it is a matter for them to decide.
The next point I would put to the Minister is this: since the CAA already treats other foreign-controlled airlines as British for the purpose of licensing policies it would hardly seem right that an SAS-controlled British Caledonian hid should be treated differently. Then, may I ask the Minister whether he would agree with some of us that it is in the best interests of the public that the status quo should continue at Gatwick, with charter and scheduled services competing on equal terms for the remaining limited capacity there? Finally, I hope that the Minister's reply will enlighten me anyway as to what he said so briefly to begin with.
Lord Brabazon of Tara: My Lords, I shall attempt to deal with the questions asked by the noble Lord, Lord Underhill, and the noble Baroness, Lady Burton of Coventry. The noble Lord, Lord Underhill, asked why my noble friend the Secretary of State for Trade and Industry had decided not to refer the merger to the MMC. My noble friend considered that the proposal raised no competition or other public interest issues which merited investigation by the MMC. In reaching his decision, he took into account all the relevant factors, including the powers available to my right honourable friend the Secretary of State for Transport to decide whether to direct the revocation of an airline's licences in the circumstances prescribed in the Civil Aviation Act 1982.
Lord Underhill went on to ask whether the CAA had a view, what effect a merger with SAS would have on our bilateral route negotiations with other countries, and whether the company would still be a United Kingdom company. Under the powers contained in the Civil Aviation Act, the CAA cannot take a formal position until a merger becomes an accomplished fact. However, it gave a formal indication to B.Cal and to my right honourable
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friend the Secretary of State that on the facts available to it yesterday morning it would be likely to notify the Secretary of State that it was no longer satisfied that control of B.Cal remained in British hands.
It has not had an opportunity to form a view on the more recent proposal from B.Cal and SAS. That is why my right honourable friend the Secretary of State for Transport wrote to the chairman of B.Cal about the possible use of his powers under the Act, which enable him to decide whether to direct the revocation of licences in the event of the proposed merger. He said that on the advice of the CAA he would be minded to revoke those routes if the merger took place on the terms as we then knew them. That is the present situation.
The noble Lord, Lord Underhill, asked me whether the proposed merger between SAS and B.Cal would lessen the independent companies' chances of gaining routes. I do not think that I can comment on that, in view of what I have said. The state interest in SAS was one of the matters about which my right honourable friend wrote today in his letter to B.Cal, a copy of which is in the Library. He said:
"Though I was grateful for the explanations furnished at our meeting as to the relationship between the three governments and SAS, I affirmed the view that it would he neither right nor conducive to fair competition between airlines in Britain that, the Government having earlier this year finally achieved the privatisation of the British airline industry, a major British airline should pass under control of an airline in which three other governments have a predominant interest".
In answer to the noble Baroness, Lady Burton of Coventry, as I said in the Statement, the Government maintain the airline competition policy as set out in the White Paper of 1984. The objectives were, first, to encourage a competitive multi-airline industry, with a variety of airlines serving travellers' needs and strong enough to compete aggressively against foreign airlines. The second objective was to promote competition in all markets, international and domestic, by working, to reduce restrictions on services and making it easier for new airlines to enter the market.
As to whether at the end of the day it should be for B.Cal's shareholders to decide, yes, it is for them to decide. My right honourable friend felt it right to make known his preliminary views as to the powers available under the Act with regard to non-British control.
The noble Baroness's last question was about the position of Gatwick and the balance to be drawn between charter and scheduled operators. It is something at which we are looking carefully. We shall probably need to look at it again when we know what will finally happen to British Caledonian. Until then, we cannot.
Lord Tordoff: My Lords, in that convoluted reply are the Government saying that they want to have a merger between British Airways and British Caledonian and that everybody else can take their hat and ball away and play somewhere else?
Lord Brabazon of Tara: My Lords, not at all. If SAS comes back with proposals which do not attract

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the CAA's opinion that control would be passing out of United Kingdom hands, that would be a different matter. Indeed, if another United Kingdom airline made a bid for B.Cal, that would be a different matter.
Lord Molloy: My Lords, does the Minister agree that the Secretary of State for Trade and Industry did not think that it was worth referring the matter to the MMC? Having listened to the ill-informed voices of many people and of the British people generally, would not a responsible Minister agree to say, "All right; very well; I will refer it to the Monopolies and Mergers Commission"? Does he agree that that is now the right thing to do?
Lord Brabazon of Tara: My Lords, no. I said that my noble friend took into account the powers available to my right honourable friend the Secretary of State for Transport, which are especially important in this case. That was one of the reasons he decided not to refer the merger to the MMC. In my opinion, another important reason is to try to end the uncertainty currently hanging over B.Cal. A further reference to the MMC would take another three months.
Lord Gray of Contin: My Lords, I fully accept the decision of the Secretary of State for Trade and Industry not to make a referral, but will my noble friend agree that the chairman of British Caledonian is following good and true Conservative principles by trying to get the very best deal he can for his shareholders? If the Government feel that this is not the way to proceed, and that they have in any way to interfere, would it not be more realistic for any interference to take the form of persuading the noble Lord, Lord King, that his offer should be upgraded?
Lord Brabazon of Tara: My Lords, the Government would certainly not wish to get involved with trying to persuade the noble Lord, Lord King, to raise his offer for British Caledonian. The reason my right honourable friend wrote to the chairman of British Caledonian in the terms that he did was largely because of the tremendous difficulties which we would have bilaterally with other countries if B.Cal was not a British airline. My noble friend will be aware that all route licensing is done on a bilateral basis between this country and others. Even if we decided ourselves that B.Cal was a British airline, other countries might well decide that it was not and try to reopen negotiations. They might even stop the airline flying in.
Lord Underhill: My Lords, I very much appreciate the detailed answers that the noble Lord has given. I said at the beginning that I thought he would give very good explanations on these civil aviation matters. However, has he not now proved that there are matters of great public interest at stake? That is why the matter should be considered further. From what he says, are we to conclude that the Government are in favour of an SAS/B.Cal merger, or have they real apprehensions about it?
Lord Brabazon of Tara: My Lords, we have grave apprehensions under the terms proposed originally by SAS for a 40 per cent. shareholding in B.Cal.
Earl Ferrers: My Lords, if SAS eats up B.Cal, will B.Cal become a foreign airline?
Lord Brabazon of Tara: My Lords, that is the whole point of what I have been trying to say. Under the terms of the original possible offer by SAS for B.Cal it was the opinion of the Civil Aviation Authority, which is the statutory body concerned with this matter, that control would no longer be in British hands and it would therefore be regarded as a foreign airline.
Baroness Burton of Coventry: My Lords, it is so difficult to conduct this matter by question and answer. This is a matter of great importance. Will the Minister, without going through the usual channels, ask the Leader of the House whether we could at some not too distant date have some discussion on this? All the facts can then be laid before us to see which of the several bids the House is in favour of.
Lord Brabazon of Tara: My Lords, in one of her earlier supplementaries the noble Baroness said that it should be the shareholders of B.Cal who decide, and not the House. I do not know whether there would be any value in a debate on this subject at the moment. As I have said, if the House requires further information on the subject a copy of the letter which my right honourable friend wrote to the chairman of British Caledonian Airways has been placed in the Library.
Baroness Burton of Coventry: My Lords, the Minister must have known that I would come back on that reply. Is he aware that I am not suggesting the shareholders should not have the last word? However, I think the shareholders would be interested in what this House has to say as we represent all sides of the political spectrum.
Lord Brabazon of Tara: My Lords, obviously my noble friend the Leader of the House heard the request of the noble Baroness for a debate. As one usually says, that is a matter for the usual channels.
Lord Molloy: My Lords, with regard to the very important letter that the Minister mentioned, quite correctly, will he agree that the agony is this? We cannot ask a letter questions. We can only ask a Minister questions. That is why we should have a short debate.
Lord Brabazon of Tara: My Lords, we are having one.
Lord Molloy: My Lords, on this very important issue, with the best will in the world I know that the Minister will agree that he does not mean to dismiss it as casually as that. When he says that we are having a short debate, can he name the date that we shall have it?
Lord Brabazon of Tara: My Lords, I meant that I am trying to answer all the questions as best I can at the moment

British Steel: Privatisation
3.44 p.m.
The Secretary of State for Trade and Industry (Lord Young of Graffham): My Lords, with the leave of the House, I should like to make a Statement on the British Steel Corporation.
The corporation today announced its half-year results for 1987–88. These show a bottom line profit of £190 million. This compares with £178 million for the whole of 1986–87. This is an impressive improvement in the corporation's performance and I am sure that your Lordships' House will join me in congratulating the corporation and all its employees on such an impressive achievement.
As your Lordships' House is aware, this Government are committed to returning successful state industries such as steel to the private sector as soon as practicable. It is quite apparent that the British Steel Corporation has now reached the stage where it would benefit from a return to a fully commercial environment. I am therefore pleased to announce that my right honourable friend the Chancellor of the Duchy of Lancaster is setting in hand the work necessary to privatise the corporation as soon as possible subject to market conditions. Legislation will be required to turn the corporation into a private company. This will be introduced later in the current Session.
In accordance with the previous commitments given by the Government, the corporation will continue with five integrated plants until August 1988. My right honourable friend has been reviewing this with the corporation in the light of the current market position. The corporation will require steel making at all five plants for a number of years. Those noble Lords with an interest in Scotland will be pleased to hear that the corporation will be putting out a statement today making clear that subject to market conditions there will continue to be a commercial requirement for steel making at Ravenscraig for at least the next seven years.
The corporation also expects that, again subject to commercial considerations, there will be a similar requirement for plate rolling at Dalzell. This therefore gives assurance to Ravenscraig's iron and steel making facilities for a considerable period—indeed, for a period much longer than the three year commitments that the Government have been able to give in each of the two previous reviews in 1982 and 1985. The corporation has also indicated that even if it should wish at some stage because of market conditions to close its steel-making facilities in Ravenscraig it would consider, on a commercial basis, any wholly private sector offer for those facilities as an alternative to closure.
There is clear surplus capacity in BSC, as throughout Europe, in hot strip. The corporation's strip mills are currently running at below 70 per cent. of their potential capacity, which is among the lowest
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level of utilization of strip mils anywhere in Europe. However, having reviewed the situation thoroughly, the corporation has decided on commercial grounds that all its present mills, including the Ravenscraig mill, will continue to operate at least until 1989.
The Government's consistent aim has been to achieve a strong competitive British steel industry capable of performing well against international competition. This is in the best interests of the workforce of British Steel and of all its customers, and in particular of steel users in the rest of British industry. The British Steel Corporation has already achieved a quite remarkable recovery and is now one of the most successful steel makers in Western Europe. I believe that early privatisation and full commercial freedom will enable the company and its workforce to be best placed to go on to further achievements and to secure a firmly based competitive industry with along-term future.
My Lords, that concludes this Statement.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Lord for making the Statement. The noble Lord will not be surprised that we find the contents of the Statement wholly objectionable. Has not the taxpayer supported the British Steel Corporation through thick and thin and has not this been a great success story for public ownership? Therefore, should not the taxpayer enjoy the return through benefiting from the future profit streak? We congratulate the British Steel Corporation on its fine performance, but is it not a strange time to consider privatisation? Is this not introducing an element of great uncertainty into the business and the workforce at just the wrong time, when it is doing so well?
What conclusions are we supposed to draw about the further uncertainty about the future of EC quotas and possible reductions in capacity as a consequence? What will, or indeed can, be put into the prospectus on this matter? Will not the outcome of those negotiations not only affect the whole future of the British Steel Corporation but possibly jeopardise the privatisation itself? What will the Government be able to say in the prospectus about the future, particularly in the light of the chairman's statement issued in his interim remarks about the adverse effects of the weakening of the US dollar? Will the noble Lord seek to privatise the British Steel Corporation as one company—is that the intention of the Statement—or will he consider splitting it up? Perhaps he will clarify that.
Are the assurances about Ravenscraig really worth very much? "Subject to market conditions" is a pretty vague expression and my noble friend Lord Carmichael will be coming on to that at a later stage. Finally, if the privatisation goes ahead and if market conditions turn against the Government at the time of the issue, will the Minister stick to the market conditions proviso in the Statement on the timing? Will he give an assurance that we shall avoid a repetition of the BP fiasco?
Lord Diamond: My Lords, we on these Benches also wish to express our gratitude to the Secretary of State for making this very important Statement and making it with such clarity and brevity.

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Some of us in the House may have a feeling that we have been here before.
Baroness Seear: Several times.
Lord Diamond: It is a very important Statement on a very important industry. We are bound to treat the matter with the greatest possible responsibility. There is no need for me to delay your Lordships by repeating that our attitude in general to privatisation is that we are prepared to consider each matter on its merits but that those who wish to change from the public to the private sector, or the reverse, have the responsibility of making a case. The case has to be made on the grounds of greater competition and efficiency. At first glance it would appear to be much easier to make that case for steel than for the water or electricity industries, or in particular for gas.
We respond immediately to the invitation of the Secretary of State to join in congratulating the corporation and all its employees on such an impressive achievement. This is indeed one more example, of which there are several already, of how an industry can be run profitably by good management whether it is in the public or the private sector.
As to the improvement in the steel industry in the public sector being a jolly good argument for transferring it to the private sector. I am afraid that I regard that as one of the non sequiturs with which we are becoming increasingly familiar in government Statements. Indeed I am not sure whether there is not a misprint. The copy of the Statement which the Government have been courteous enought to supply me with says:
"It is quite apparent that the British Steel Corporation has now reached the stage where it would benefit from a return to a fully commercial environment".
I take it that that is a misprint and it should read:
"It is quite apparent that the British Steel Corporation has now reached the stage where the Treasury would benefit from a return to a fully commercial environment".
The Statement refers to "subject to market conditions". We must ask the Secretary of State to be a good deal more explicit. Clearly it would he wholly wrong and wholly irresponsible to consider issuing shares in a privatised company in the present state of the market. What do the Government have in mind and what criteria will they use in judging whether market conditions are appropriate?
The next question is similar to one asked by the noble Lord, Lord Williams of Elvel, but from a slightly different point of view. The Statement makes it clear that the machinery will be to turn the business of the corporation just as it is into a private company. Therefore, how will the competitiveness of the industry be increased? I am referring to the part of the Statement, if the Secretary of State does not follow me completely, where it says:
"Legislation will he required to turn the corporation into a private company".
I take it that we are to read it exactly as it has been stated.
We welcome very much indeed the comments in the Statement in relation to Scotland. They are an
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important part of the Statement and will be of considerable benefit to all those concerned, not only those with Scottish intereests but those with interests in employment generally. In that connection can the Secretary of State make an overall estimate, not merely for Scotland, of the employment situation in three years' time compared with what it is today?
I too am interested in the situation in relation to the EC. The Government have no doubt felt it proper hitherto to give full regard to the interests of British Steel while it was in the public sector in all negotiations on steel production generally in the EC. Can we be assured that they will still give the fullest regard to the best interests of steel production in this country once the corporation ceases to be a part of their direct responsibility?
Lord Young of Graffham: My Lords, I am grateful to the noble Lord, Lord Williams of Elvel. I trust that the noble Lord, in saying that my Statement was wholly objectionable, did not include in that remark the corporation's results, which are a matter of considerable congratulation. I am sure that he did not mean to include that.
Lord Williams of Elvel: My Lords, I congratulated the British Steel Corporation.
Lord Young of Graffham: My Lords, I assure the noble Lord and the noble Lord, Lord Diamond, that the British Steel Corporation is one corporation and will continue to be one corporation. We shall deal with it and it will be returned to where it rightfully belongs, in the private sector as one corporation. I assure both noble Lords that what the market conditions will be will depend on how the market is at the time.
As my Statement made quite clear, we have first to bring a Bill through your Lordships' House and another place to ensure that the company is a private company suitable to be returned to the private sector. Then we shall proceed, subject to the legislation, to have the shares sold and the company returned to the private sector. There are very good reasons for that. I assure the noble Lord, Lord Williams, that the state and the taxpayer will profit now that the company is returned to good health, first, by the proceeds of the disposal of shares and, secondly, by the stream of tax revenues, as I would hope to see the company continue in its profitable state in the private sector, as indeed have all the now privatised companies that were once part of the public sector. Company after company is returning to the Treasury more in tax these days than it used to in dividends in the old days when it was in the public sector.
We have come a long, long way. The noble Lord, Lord Diamond, said that we have been here before. Alas, we were here some 20 years ago when unfortunately the whole of the steel industry was nationalised. We are now seeing a thoroughly strong potentially private sector steel industry which will be with us, we hope, within a year or two. Steel-making is an activity that is suitable for privatisation. It is in the forefront of competition throughout the whole of Europe. Before very much longer my right honourable friend the Chancellor of the Duchy of

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Lancaster will be attending the Steel Council and we shall be discussing the position of surplus steel-making capacity in Europe.
Today all noble Lords will at least feel encouraged by the fact that we have as competitive a steel industry as any in Europe and that we are in as good a position as any other country in Europe to face the challenging conditions to come. The present assessment of the management of the British Steel Corporation is that the company is suitable for return to the private sector, and it will be returned to the private sector as soon as legislation permits. If at that time market conditions should advise otherwise, no doubt that practical advice will he followed.
Finally, perhaps I may say to the noble Lord, Lord Diamond, that it is impossible for me, the management or anyone else to give an estimate of what the employment position will be like in this industry or generally in three years' time. That depends on the market conditions at the time. What I know today is that the steel industry is likely to be profitable and efficient in three years' time.
Lord Williams of Elvel: My Lords, I am sorry to press the noble Lord. Will he answer my question about the effect of EC quotas and possible reductions in capacity?
Lord Young of Graffham: My Lords, at the moment the position is in a state of flux. There is a strong possibility that quotas will disappear over the next 18 months but that depends on the outcome of the Steel Council. Should quotas disappear, we are as well placed as anyone to face the conditions at that time.
4 p.m.
Lord Crickhowell: My Lords, as one who has been particularly closely involved with the steel industry over the past eight and half years perhaps I may congratulate the industry on its magnificent performance, not least the performances of the two great steel plants at Llanwern and Port Talbot and the tinplate industry in Wales for its contribution.
Was it not an extraordinary comment from the noble Lord, Lord Williams, that it is wholly objectionable that commercial decisions should be taken by commercial organisations? Does he recollect, as I do, sitting through endless meetings of Cabinet and Cabinet committees to decide about wholly commercial matters, such as the future of Ravenscraig, and indeed other much more direct daily commercial matters, a position forced on government by nationalisation? Does he not share my welcome for the fact that we are to get away from that wholly undesirable position? Will he not confirm that the chairman of the British Steel Corporation has said that he looks forward to privatisation, wants privatisation and wants to do business in a world where he can take decisions on a commercial rather than a political basis?
Lord Young of Graffham: My Lords, I am grateful to my noble friend, whose voice I hear for the first time in your Lordships' House; and all the better for that since I agree so much with what he says. Leaving
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aside the fact that the noble Lord, Lord Williams, finds my Statement objectionable—and in the fullness of time I hope to persuade him to see the error of his ways—I should like to pay full tribute to the way in which the steel industry in Wales has rallied over the past few years and during the time when the noble Lord was a distinguished member of the Cabinet.
The noble Lord has one other advantage over me. Perhaps it may well be that the day I leave the Cabinet I will recover my memory as to what goes on on those occasions; but for the moment my mind is quite blank!
Lord Carmichael of Kelvingrove: My Lords, everyone would want to congratulate the British Steel Corporation on its quite remarkable performance over the past few years. However, is the noble Lord aware that there will be little satisfaction or reassurance felt in Scotland when the fine print of the Statement has been examined? Under examination the apparent seven-year guarantee becomes subject to commercial requirements and market conditions. How does this differ from the Statements made in 1982 and 1985 when a period of three years was given?
The Statement goes on to say that the corporation has indicated that, even if it should wish at some stage because of market conditions to close its steel-making facilities at Ravenscraig, it would consider on a commercial basis any wholly private sector offer for those facilities as an alternative to closure. This compounds the uncertainty that will he felt in Scotland about Ravenscraig. Is the Minister aware of the social damage that this continued uncertainty will cause in Lanarkshire in particular and in Scotland as a whole?
Lord Young of Graffham: My Lords, I am grateful to the noble Lord for those comments but I feel I must express my amazement. We live in the real world, a competitive world, yet the chairman and board of BSC having considered the position are prepared today to give assurances lasting for seven years about the production of steel at Ravenscraig; and furthermore have said that, should they at any time in the future have to close those steel-making facilities at Ravenscraig because of market conditions, they would consider on a commercial basis any wholly private sector offer for those facilities as an alternative to closure. Going that far is unparalleled. It is going much further than the three-year commitments that governments have given and have been able to offer in reviews in 1982 and 1985. In the real commercial world it is difficult for management to see that far ahead, yet we are indeed aware of the sensitivities in Scotland and the management of the British Steel Corporation has been able to offer assurances going as far as seven years. I thought that those assurances would be received with great rejoicing north of the Border and I am sure that they really should be.
Lord Gray of Contin: My Lords, will the Secretary of State accept that there is a point of view in Scotland different from that suggested to him from the other side of the House? Does he realise that the

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voices of protest from the other side would have been equally loud, if not louder, had he announced that the British Steel Corporation was to be privatised while making heavy losses? It is a great plus that now the industry has taken itself out of the deplorable state it was in under its national control and is fit to be offered to the private sector. Does he accept that many in Scotland will welcome the assurance that has been given today? Indeed it is an assurance that could hardly be bettered. It is realistic. Many in Scotland will greatly appreciate that.
Finally, while my noble friend is in the process of preparing legislation which will enable the British Steel Corporation to be privatised, will he look a little further at the coal industry in Scotland to see whether he can do something about that at the same time?
Lord Young of Graffham: My Lords, on my noble friend's final suggestion, sufficient unto the day, I think.
I can recall vividly my arrival at the Department of Industry in 1979 as special adviser when the British Steel Corporation was losing £4 million or £5 million every single day. It is an enormous transformation. It is a tremendous tribute to the enthusiastic workforce and to the management of the British Steel Corporation, which is looking forward now to an even better life in the commercial world where it will be able to make commercial investment decisions for the best of all possible reasons.
Lord Dormand of Easington: My Lords, have we not heard the most revealing sentence, a real example of letting the cat out of the bag by the Secretary of State? He said that the Government are committed to returning to the private sector successful state industries such as steel. Is that not another way of saying that some fat profits will be made by certain people in the City? Is there not now ample evidence of shortcomings in the Government's privatisation programme? Will they give a little more consideration to the country as a whole and not simply to profit-making? In a recent debate on this question noble Lords on all sides of the House showed that this was not just a question of certain people making money. Will the Secretary of State give further consideration to this point?
Lord Young of Graffham: My Lords, I have given long and careful consideration to the way in which a country could have all the health, social and other services it has without creating the profits in the first place out of which to do so. Of course we can only privatise those companies which are profitable. If the noble Lord can suggest to me a way in which we can privatise unprofitable companies I promise we will consider it seriously, because companies do not flourish and do not grow in the public sector. What we are seeing is simply a further extension of the Government's privatisation programme, which will not end until all the companies that should be in the private sector are returned there.
Lord Ezra: My Lords, the Secretary of State has made it clear that the proposed privatisation measure for British Steel will comprehend the whole of the organisation as it now exists. While it is perfectly true
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that British Steel is in competition with other big steel-makers throughout the world, it would remain the dominant steel-maker in Britain. Would it therefore be proposed to introduce into the legislation some regulatory body, or other consumer protection body, which could safeguard users of British Steel in Britain? I speak as a past chairman of the British Steel Users' Association.
Lord Young of Graffham: My Lords, the normal reason for introducing a regulatory body is to ensure that, if there should be a monopoly supplier, that monopoly supplier will not charge excessive prices to the consumer. I recall the difficult days in 1979–80 during the strike in the steel industry when after a few weeks there appeared to be an adequate supply of steel coming in from other parts of the world, and I think that would ensure that there would be no shortage of competition, whatever the British Steel Corporation did in its private form. To have a regulatory body to ensure that only British steel was used would be quite against the spirit of the Treaty of Rome, and indeed not in the interests of either the consumer or British industry as a whole.
Lord Cledwyn of Penrhos: My Lords, while I fully support the firm response of my noble friends to this doctrinaire and unnecessary proposal. it is to another matter that I wish to direct the attention of the noble Lord and also the noble Viscount the Leader of the House. In the Statement it makes plain that legislation is proposed in the current Session. The noble Viscount and noble Lords opposite are fully aware that we are deeply concerned at the present time about the volume of legislation which it is proposed should come before this House. It is generally agreed on all sides of the House that the legislation which was predicted in Her Majesty's gracious Speech was indeed far too heavy a burden in parliamentary terms.
We know perfectly well that very heavy legislation will begin to come to this House from another place from Easter onwards, and now the Government are proposing to entertain another heavy and highly controversial measure in the current Session. What I say now I say for the purposes of putting a marker down, because obviously we shall have to return to this. But it is my duty on behalf of the Opposition and indeed on behalf of noble Lords throughout the House to give notice that this may create an extremely difficult situation for this Chamber.
The Lord President of the Council (Viscount Whitelaw): My Lords, I take my full responsibility for this decision and for what was said about legislation. I fully understand what the noble Lord the Leader of the Opposition has said. I hope to prove to him, as the year goes on, that I shall succeed in looking after the interests of the Members of this House with his assistance. I fully accept that I cannot do it without his assistance and the assistance of the leaders of the other parties, but together I believe that we can do it. If it is in the best interests of our country, it is certainly my job to seek to get the legislation through your Lordships' House.
Lord Morris: My Lords, does my noble friend agree with me that the noble Lord the Leader of Her Majesty's loyal Opposition grossly underestimates the stamina of our youthful House?
Viscount Whitelaw: My Lords, I do not know about the stamina of noble Lords. Sometimes I begin to wonder how their breath will hold up in some of their activities, and perhaps a little less breath would be a good thing from time to time.
Lord Hailsham of Saint Marylebone: My Lords, is it not conceivable that our ability to digest further legislation might be improved if we got on with the copyright Bill?

Legal Aid Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to introduce a Bill to make new provision for the administration of, and to revise the law relating to, legal aid, advice and assistance. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Business of the House
Viscount Whitelaw: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 44 (no two stages of a Bill to be taken on one day) be dispensed with to enable the Scottish Development Agency Bill and the Urban Development Corporations (Financial Limits) Bill to be taken through their remaining stages on Thursday 17th December.—(Viscount Whitelaw.)
On Question, Motion agreed to.

Copyright, Designs and Patents Bill [H.L.]
4.15 p.m.
Lord Beaverbrook: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Beaverbrook.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 12 [Duration of copyright in literary, dramatic, musical or artistic works]:
Lord Somers Lord Somers moved Amendment No. 55:
Page 6, line 30, leave out ("50") and insert ("70").
The noble Lord said: I beg to move Amendment No. 55, which stands in my name and that of the noble Lord, Lord Willis. Its purpose is sufficiently
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obvious to make it unnecessary for any lengthy explanation, but I should point out that other European countries—Germany, France and Spain—have already adopted 70 years as the duration of copyright, and Italy has given notice of its intention to do so.
We have heard often from the Government that it is desirable to keep in step with European countries on perhaps far less important matters than this. Therefore I hope to hear from the noble Lord that he will accept this amendment. I beg to move.
Lord Denning: I hope that the Committee will not accept this amendment. Fifty years has been the period ever since 1911 in the Copyright Act, and there is no sufficient case for altering it. It is quite long enough for most copyrights, and I hope that the Committee will not accept the amendment.
Lord Willis: It is a brave man who crosses swords with the noble and learned Lord, Lord Denning, but may I venture to disagree with him? We have a strange situation existing at the moment in Europe, and we are after all members of the European Community.
As the noble Lord, Lord Somers, said, in France, Germany and Spain they have a 70-year period. Therefore we have this strange situation that had Elgar had the good sense to have his symphonies published in France they would still be in copyright, but because he did not have that foresight they are not in copyright and money is now being lost to this country in the form of overseas earnings. Why should it be profitable for a musician or anybody else to go abroad and have his material published so that he can get it extended for 20 years? We ought to come into line with the rest of the Community. It is sensible, logical and reasonable to make it 70 years.
Lord Broxbourne: In reference to the point made by the noble and learned Lord, Lord Denning, as to the 50-year period having existed since the Copyright Act 1911, has my noble friend the Minister any information for the Committee as to the relationship in the expectation of life as between 1911 and today?
Lord Kilbracken: I should like to support the amendment put down by the two noble Lords. I have never understood why it should be the case that a certain length of time after an author's death other people who have had nothing to do with the creation of the work should be able to steal it. I should like to see the time extended to 100 years.
I must say to the noble and learned Lord, Lord Denning, that if we accept the argument that it has been in the Acts of 1911 or 1956, that would deny that what we are trying to do here is improve existing legislation. Therefore, we must not be concerned if we are changing something that has existed hitherto.
Viscount Massereene and Ferrard: I should like to take up the point made by the noble Lord who sits behind me. I am told it is a fact that today we live longer. Therefore I think that 50 years is a short time and I do not see why, as on the Continent, 70 years should not be the time when copyright ends.
Lord Hailsham of Saint Marylebone: The period of 50 years begins from the death of the author and if we live longer it will be the better for us all. However, when one is dealing with intellectual property one must consider two points: first, when the article becomes the property of mankind, or of the nation, or of language or literature; and secondly, for what period of time the original author of the work or design is to retain a monopoly. It is a difficult balance to draw but I believe that 50 years is about right. The works of Gilbert and Sullivan are now part of English literature and there is no particular reason why the descendants of Gilbert and Sullivan, if there are any, should continue to enjoy a monopoly.
Lord Lloyd of Kilgerran: I wonder whether the argument of the noble Lord, Lord Somers, as regards the position of the EC, is quite so simple. When I was discussing questions of copyright in Brussels a couple of years ago the anomaly arose that under British law an author can join a co-author much younger than himself. Therefore, when a man of 45 joins with a young man of 20 they may have 90 to 100 years of protection. I think that if there is any question of the Government agreeing to increase the number of years it should be in respect of only one author and not a joint authorship.
Lord Morton of Shuna: The noble Lord, Lord Willis, mentioned the Common Market but surely the answer is that there should be a common period throughout the Community for the purposes of harmonisation. Can the Minister say when it is likely that there will be harmonisation on this issue?
Lord Beaverbrook: The noble Lord, Lord Somers, has spoken of the need for an increase in the term of copyright protection from life plus 50 years to life plus 70 years. Germany has a term of life plus 70 years, the same as in the amendment. Nevertheless, countries such as Germany are very much in the minority. The term specified in the Berne Convention, admittedly as a lower limit, has in fact become the accepted international standard. Moreover, the present life plus 50 years term has existed in this country for a very long time now and there has been no evidence that over that period an increase was either necessary or justified. The Whitford Committee report recommended no change and I have to say that I do not agree with the noble Lord.
Turning to the point made by my noble friend Lord Broxbourne, I regret to tell him that I have no information as to our present longevity as compared with 1911. I should like to point out to the noble Lord, Lord Morton of Shuna, that we believe that the 50-year term is more the accepted international standard than the 70-year term and hope that it will remain so.
Lord Somers: I think that the noble Lord is mistaken when he says that the period of 50 years is more usually accepted than that of 70 years. As I said in my introductory remarks, Germany, France and Spain already have a 70-year period and Italy is also proposing to do so. Those are the European countries
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in which more artistic works are produced than in any other. It seems to me to be unreasonable that we should not be in step with them.
Lord Harris of Greenwich: The noble Lord, Lord Beaverbrook, cited Germany as the single major exception. Is that right, or are there other significant exceptions?
Lord Morton of Shuna: Is not the position that Spain has a term of 80 years; France 64 years; Austria 70 years; Italy 56 years; Belgium 60 years; and Germany 70 years? The Minister did not appear to answer my question which was: when do the Government expect harmonisation on the different figures within the EC?
Lord Beaverbrook: I cannot answer the direct question put by the noble Lord as regards harmonisation. From the sound of the figures that he quotes, we may never have it. We feel that 50 years is the right period for this country to continue. It has been the accepted period in this country for a long time and I do not believe that there have been any problems with that length of time.
I am now informed that the European Commission has been considering whether harmonisation of various elements of copyright law would be helpful to the aims of the Common Market. However, we do not yet know when it will publish its findings. At present harmonisation is achieved largely through the Berne Convention, which specifies life plus 50 years but allows countries to give more if they wish. On a worldwide basis, life plus 50 years is the most common term.
Lord Wyatt of Weeford: The noble Lord, Lord Beaverbrook, has said that he does not think any harm has come from the 50-year limit being so short. The harm comes to the heirs of the owner of the copyright and often the copyright is the only property that the author has been able to create. I do not think that Members of the Committee would be happy with the notion that 50 years after their death all their property would become public property, which is what we are providing for here. If other countries have a scheme by which the limit is 70 years, I cannot see why we should not conform. The whole idea of stating that a man cannot leave his copyright to his heirs and successors beyond 50 years after his death is an extraordinary restriction on property rights.
Lord Harris of Greenwich: I agree with what the noble Lord, Lord Wyatt, has said. As the noble Lord, Lord Beaverbrook, will realise, he has not been able to answer my question in the time available. It has kindly been answered to some extent by the noble Lord, Lord Morton of Shuna. However, I should be grateful if, between now and the next stage of the Bill, the noble Lord will give me an answer to my question.
Lord Willis: Perhaps I speak on behalf of myself and the noble Lord, Lord Somers. As I am proposing to live at least until the year 2000 my copyrights will last until the year 2050 and I think that that should see out my dearly beloved. I should much prefer it to be 2070. However, in the light of the comment made

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by the noble Lord, Lord Harris of Greenwich, and his request that the Minister should look at the question and give a reply, I beg leave to withdraw the amendment.
Lord Somers: I agree entirely with the noble Lord, Lord Willis, that it is not worthwhile pressing this amendment to a Division. However, in view of what the Minister has said, I do not think that in future we need pay too much attention when the Government state that we must keep in step with Europe. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 56:
Page 6, line 33, leave out ("copyright expires").
The noble Lord said: This amendment must be read in conjunction with Amendment No. 58, without which it makes no sense at all. I assume that Amendment No. 57 will be withdrawn.
Subsection (2) deals with the duration of the copyright when the identity of the author of the work is unknown. My amendments are intended to make the text a little more comprehensible without—intentionally—affecting the meaning.
The Committee will note that at present the form of the subsection is such as to mean that if one thing happens, a second thing will happen unless a third thing happens. I feel that that is hardly a happy arrangement, especially when the subsection is almost entirely innocent of any punctuation. If my two amendments are accepted the subsection will simply read:
"If the identity of the author of the work is unknown at the end of the period of 50 years from the end of the calendar year … copyright expires forthwith".
I think that that wording is shorter and clearer and therefore I beg to move the amendment.
Lord Denning: I should like to support the amendment. It is a much simpler way of saying that when the author is unknown, copyright is protected for 50 years from the date of the publication of the work.
Lord Beaverbrook: I think that this may be a case in which the drafting of the Bill could be improved and I am grateful to the noble Lord, Lord Kilbracken, for his suggestion. However, I am not able to accept the amendment at this stage because we shall need carefully to consider the implications before we can agree to make a change. Nevertheless, if the noble Lord will withdraw the amendment at this time we shall do exactly that and return to the question at a later stage when we have had a chance to consider his very helpful suggestion. I should say for clarity that I am speaking to Amendments Nos. 56 and 58.
Lord Kilbracken: I am most grateful to the noble Lord and am happy to withdraw my amendment. It is the second time that he has said that he will take up one of my amendments and I am very grateful. Of course, if I do not see a simple amendment on the
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Marshalled List at Report stage I shall table my amendment again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 57 and 58 not moved.]
4.30 p.m.
Lord Brain Lord Brain: moved Amendment No. 59:
Page 6, leave out lines 44 to 46.
The noble Lord said: I beg to move Amendment No. 59 standing in my name and the name of the noble Lord, Lord Hutchinson of Lullington. It may be for the convenience of the Committee if I also speak to Amendments Nos. 60 and 61. Amendment No. 60 has exactly the same effect as my amendment. Either one leaves out the paragraph or one amends the wording so that it is the author's death—as in the first part of subsection (1)—that is the effective date. I do not think that we are at odds on that.
I should prefer to listen to the points which may be made by the noble Lord, Lord Kilbracken, during the debate, if he wishes to make them, before I say too much about "taken" and "published", because it will rather confuse my argument if I refer to the great number of points involved during the course of my speech. I believe that the Government have simply taken a section of the 1956 Act and reinstated it in almost the same words, probably without considering the very changed situation that exists at present compared with 1956. Moreover, during the Second Reading debate I think a comment was made to the effect that we were doing better than the Berne Convention. Why should we not do much better than the Berne Convention and make it not 50 years from the date that something happened but be consistent and make it 50 years from the author's death?
Photographic materials and cameras have changed immensely over the years. Materials can be used under different lighting conditions and cameras are of different formats. Photo-journalism has become a much more important aspect of all photography. In 1911 photography comprised records, portraits and landscapes. Photo-journalism did not exist to any great extent, although one can go back to Roger Fenton and the Crimean War to find the first war photographer. Nowadays everything has to be captured instantly; that is the really important difference. A news team may go out to Ethiopia in order to portray the famine there. That team consists of a journalist and a photographer. As regards any book or report written by that journalist the copyright lasts for 50 years after his death; copyright of the photographer's illustrations lasts for 50 years from the date the photographs were taken. That is a total anomaly at the present day. That is why I am suggesting my amendment.
Similarly, when an author has written a book he can arrange for a photographer to provide some illustrations and also for an artist to make some drawings. Two of those three people have their rights protected for 50 years beyond their deaths but one has his rights protected for 50 years from the day on which the photographic operation took place.
Photography has now become a vital part of recording social history. Events are often recorded in photographs rather than being written down immediately; the writing may take place later. That does not matter because at whatever time it was written it is still preserved for 50 years after the author's death. Yet the photograph, which may be the most important part, is only protected from the day on which it was taken.
To take the argument a little further, let us suppose that someone is in the course of writing a social history of the period 1920–1940. Under the Bill photographs taken during the first 17 years of that period—perhaps about half—would be free from any copyright and could be used free of charge. The rest of the photographs, which possibly may have been taken by the same photographer, would have to be paid for and the copyright bought. I am afraid that that is a ridiculous anomaly. As we have just heard, people are living longer nowadays. Why should somebody whose work was done during his 20s have that work taken out of copyright when he reaches the age of 70-plus? That is a ridiculous situation.
One has also to look at the current position regarding photography and photographs. In the past, taking duplicates from existing prints was not an efficient or very good way of obtaining a new image and because very often the author's estate had control over the negatives there was still the possibility of obtaining some money for them. Nowadays, photo-duplicating—I am not saying photocopying because that is a completely different process—can be done very efficiently. If one has a good, glossy print of something that is out of copyright, the work can be made available again in the same quality. That is another reason why there has been a movement towards more control. I feel that it is most important that there should be uniformity across the board in this respect for all authors. I beg to move.
The Deputy Chairman of Committees (Lord Aylestone): The Question is that Amendment No. 59 be agreed to? I must point out that if this amendment is carried, I cannot call Amendments Nos. 60 and 61.
Lord Morton of Shuna: We strongly support the idea behind the amendment of the noble Lord, Lord Brain, that we are now discussing. Amendment No. 60 tabled in the name of my noble friend Lord Williams and myself has exactly the same intention and it does not perhaps matter whether it has the same wording. I do not wish to repeat the words of the noble Lord, Lord Brain, and should like to draw attention to a different aspect of the matter.
I suggest that since 1911 photography has developed into an art form far more than was thought possible in 1911 or 1956. Since then there has been a history of very famous photographers such as Karsh and Cecil Beaton. Those photographers have taken portraits which in a sense are very close in artistry to the art of a painter who is painting a portrait. It is very difficult to see why a painter should have his rights protected for 50 years from his death whereas a photographer like Cecil Beaton should have his work go out of copyright as soon as he dies.
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I should have thought that in common fairness the photographer should also have that extra period.
Lord Lloyd of Hampstead: I should like strongly to support this amendment which seems to be based on a very sound principle. If one looks at the history of the matter I think one would probably find that in the early days of photography photographs were necessarily regarded as rather ephemeral works because of the susceptibility of the material to vanish with the passage of time.
As has already been pointed out, there have been great technical changes since then and photography is undoubtedly a very much more permanent art than it used to be. There seems no reason why, at the present day, there should be this discrimination against the artistic creator of a photograph as opposed to other artistic creators. Therefore, I strongly support this amendment.
Lord Peston: If we cast our minds back to the Second Reading debate, a. number of noble Lords spoke in favour of precisely a move in this direction, and I was one of those. I think what we had in mind was something extremely simple. We simply hoped that the word "photographic" would appear in line 29 on page 6 after "literary, dramatic, musical or artistic". In other words, we wanted "photographic" treated in exactly the same way as these other works. I rise simply to support this amendment and also to ask the mover of the amendment or the Minister whether the amendment does that simple thing, which is what is required, of treating photographic works in exactly the same way as all those other works.
Lord Greenway: I also strongly support the amendment of my noble friend Lord Brain. I agreed very much with what he and other noble Lords have said. I think it is time that photographers were brought into line with, if you like, the rest of the artistic world. There is, however, one grey area which acceptance of one of these amendments would clear up; that is, it is not always easy to tell when a photograph was actually taken. I have already expressed my interest at an earlier stage of the Committee. I, as a photographer, take an awful lot of photographs and I do not always recall exactly when they were taken.
Lord Ardwick: I too should like to support this amendment and to remind the Committee that on Second Reading I spoke of the position of photographers of my own age, who find that their splendid photographs of the Spanish Civil War, the advent of Hitler and other historic events like that are now running out of copyright, just at the time when copyright fees are necessary to supplement their inadequate pensions.
Lord Hutchinson of Lullington: I echo what the noble Lord, Lord Morton, said about photography now being regarded as an art form, and remind the Minister that the Arts Council of Great Britain now treats photography as it treats other forms of art. It has its own group chaired by a distinguished member

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of the council, as have other forms of art such as music, painting, and so on. After all, the convention goes back to 1889 and things have changed since then so far as concerns the regard of the public for photography.
Photographers are mainly self-employed. They have to go out into the world to get commissions and the persons who commission the photographers defend themselves by contract, whereas a photographer must fall back on the continuing value to him of his own individual work. When he reaches a ripe old age is exactly the time when he would want to be able to depend upon his early work. It is rather ridiculous (is it not?) that someone such as Mr. Cartier-Bresson should at this stage of his life lose all control over his early photographs, which are now recognised throughout the world as absolutely outstanding works of art. I support this amendment very strongly.
Lord Kilbracken: The noble Lord, Lord Brain, referred to my Amendment No. 61 when he was moving his own, and my amendment cannot be moved if either of these other amendments succeeds. That would suit me fine, because I support either of them and they both seem to amount to the same thing. My only reason for putting down Amendment No. 61 was that, in the event of neither of those amendments reaching the statute book, and if the Bill remains as it is, it will reduce even further the period before the copyright in a photograph ends. At present, it is 50 years from the time the photograph was published, but the period from when the photograph was taken will be shorter.
I want to draw attention to what the Minister said on Second Reading about the Berne Copyright Convention of 1886. He gave the impression that 25 years is the period set down by the convention, but Article 7, Section 18.30, states that the term shall last at least until the end of the period of 25 years, which is merely a minimum period and not a period that is recommended.
Lord Somers: There is one practical advantage to this amendment: and I must apologise to my noble friend for preferring the form of Amendment No. 60 to Amendment No. 59. The difficulty is that it would be practically impossible in some cases to identify the date on which a photograph was taken.
4.45 p.m.
Lord Beaverbrook: In speaking to Amendment No. 59, for the convenience of the Committee I shall speak also to Amendments Nos. 60 and 61. The copyright in a photograph under the Bill, as under the present Act, lasts for 50 years although the starting point has changed from publication to the taking of the photograph in order to ensure that unpublished photographs do not enjoy indefinite protection. A period of 50 years is consistent with that granted to films and is in excess of that required by the Berne Convention.
As the noble Lord, Lord Peston, pointed out, it is quite clear from the debate in this Chamber during
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Second Reading and again today that there are many noble Lords who believe that photographs should be treated on the same footing as other artistic works. We think this is something that we need to look at again in the light of the debate today, and will return with appropriate amendments both here and in Schedule 1 if we conclude that a change should be made. In the light of that undertaking, I wonder whether noble Lords will agree to withdraw their amendments today.
Lord Brain: I am very pleased to withdraw the amendment. But before I do so, I would point out to the noble Lord in front of me that "artistic work", as defined in Clause 4, specifically means:
"a graphic work, photograph or sculpture".
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 60 and 61 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 62:
Page 7, line 25, at end insert—
("( ) sale or distribution to the public and").
The noble Lord said: This amendment might well be thought to be superfluous, but it has been put down in my name largely in order to make sure that it is quite clear that sale or distribution are a means made available to the public. I should have thought that inserting these words made the subsection read rather more clearly and would not do any harm to the Bill. I beg to move.
Lord Beaverbrook: There can be no doubt that sale or distribution to the public of copies of a work constitutes making the work available. But there are other acts which are to count as making available for the purpose of this clause, and some of these may not be so readily apparent. That is the purpose of subsection (5). Subsection (5) is an expression of the normal meaning of "made available". It lists cases which are to be included in the expression "made available to the public" which might not otherwise be included.
The amendment proposed by the noble Lord is, I believe, unnecessary. Indeed, I would go further and say that it might be positively confusing as suggesting that other things which would naturally fall within the concept of making available, but were not sale or distribution, should not be treated as making available.
Perhaps I should say a word here about the principles governing the inclusion of a definition in the Bill and the form which they take. A number of questions have already been raised by noble Lords in connection with the definition, or absence of definition, of expressions such as "dramatic work", "artistic work", "graphic work" and "film sound track". There is no need to define a word which bears its ordinary English meaning, if there can be no real doubt what that meaning is. An example is "sound track".
Sometimes, however, a word is used in a special sense or its ordinary meaning leaves room for doubt or a novel expression is devised for the purposes of the Bill. An example is "general scheme" in Clause

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125(2). In those cases we need a definition. If the definition is all-embracing the word "means" is used. Examples are the definitions of "musical work" and "film". The definition is not, however, all-embracing: the word "includes" is used indicating that the rest of the meaning is to be filled up by ordinary usage and common sense. One example is "dramatic work", which obviously includes a play or an opera libretto but does not include dance or mime unless one says so. Another example is "made available to the public" and where we add to the ordinary meaning of things which are obviously not made available. I hope that this clarifies the matter for the Committee.
Lord Somers: I am very glad that the Minister has not accepted the amendment. In the case of music, for instance, there are many cases in which composers have their works performed while they are still in manuscript form. Even after they have been performed, it may be many years after the composer's death before they are published. I therefore think that it is better not to adopt the amendment.
Lord Morton of Shuna: The noble Lord, Lord Somers, seems to have misunderstood the intention of the amendment. The intention is not to omit "performance" but to add "sale or distribution". It is my understanding that many musical works are now performed without there being any writing in manuscript. Having heard what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 12 shall stand part of the Bill?
Lord Williams of Elvel: Before we leave Clause 12 I wish to ask the Minister two simple questions.
First, I return to the question of a composite work which is not literary, dramatic, musical or artistic but may be a compilation of one or more of those works. I referred earlier in Committee to the question of collage, which crosses the boundaries and in which literary and graphic works can be pasted together. That is certainly a work that should have some copyright protection. I am not sure whether it is covered by the Bill as drafted. Perhaps the Minister could clear that up?
Secondly, on the question of joint authorship, I am uncertain—I hope that the Minister will be able to enlighten me—of the position of reference works such as the Encyclopaedia Britannica which are indeed joint authorship. I am not entirely clear when the copyright on either all or part of such works expires.
Lord Hailsham of Saint Marylebone: This may not be the appropriate point at which to raise the matter, but I gave my noble friend the Minister notice some time ago that I had been approached by the owners of a periodical which very largely makes its living by the use of a composite team engaged in literary work in which it is almost impossible in its very nature to identify the particular author of the particular words that occur even in a particular sentence. If my noble friend would indicate that either now or at some other time we can have an answer to the point, I
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should be grateful. I do not wish to take up the time of the Committee if discussion on clause stand part is not an appropriate moment.
Lord Beaverbrook: In reply to the point raised by the noble Lord, Lord Williams of Elvel, we have agreed to consider this matter and are doing so. I shall come back to him as soon as possible on the matter of composite works and collages.
As to the question asked by my noble and learned friend Lord Hailsham, there is a problem in cases where the identity of the author is not definitely known. Therefore, the normal term of life and 50 years provided in subsection (2) cannot be calculated.
The Bill adopts the formula in Article 73 of the Berne Convention which provides for a term of 50 years from the time that the work has been lawfully made available to the public, subject to the proviso that the protection will no longer apply when it is reasonable to assume that the author has been dead for 50 years. Under the 1956 Act, copyright in anonymous or pseudoanonymous works continues for 50 years after publication and continues indefinitely for unpublished works. Subsection (2) will bring our law into compliance with the Paris text of the Berne Convention and remove the undesirable indefinite term for unpublished works. If the identity of the author becomes known at any stage, these provisions are no longer applicable and the duration of copyright is calculated on the basis of the normal term of life and 50 years.
Perhaps I may return to a further point made by the noble Lord, Lord Williams of Elvel, about joint authorship. To take his example, if an encyclopaedia is written by a team without each item being ascribed to a particular author, copyright will last until 50 years after the death of the last author to die.
Clause 12 agreed to.
Clause 13 [Duration of copyright in sound recordings and films]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 63:
Page 7, line 38, leave out ("it is made") and insert ("its making is completed").
The noble Lord said: Clause 13 deals with the length of copyright where a sound recording or film is involved. The Committee will note that subsection (1)(a) provides for a
"period of 50 years from the end of the calendar year in which it is made".
It takes a long time to take a film: it may take a year or two years. The making of the film may well begin before 31st December in one year and end after the end of the following year. I therefore think that it should be specified whether we are talking about the time at which work on the film starts or finishes. Under the amendment it would be stated positively that the period is 50 years from the end of the calendar year in which the making of the film is completed.
Lord Beaverbrook: The amendment seeks to avoid any doubt as to when the 50-year copyright in unreleased films and sound recordings expires, by

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providing a clear starting point for calculating the 50-year term.
We were initially attracted to the amendment proposed by the noble Lord but on further consideration realised that it might cause difficulties. It must be remembered that the date in question here is of relevance only when a film is not released within 50 years of its making. There must be very many films in this category which have been made but arguably have not been completed.
Having had the possible distinction between making and completing a film drawn to our attention by the amendment, we should like to ponder the implications further. In particular we should like to consider whether subsection 5(a) of Clause 143, which repeats the words of the present Act, is correctly drafted. I am grateful to the noble Lord for alerting us to this matter and trust that he will agree to withdraw his amendment to give us the necessary time to look further into the matter.
Lord Williams of Elvel: I apologise for pressing the Minister on this. Is it right that an incomplete film will enjoy copyright in the same way as a complete film?
Lord Beaverbrook: Yes.
Lord Kilbracken: I am grateful to the Minister for what he has said. I was surprised to hear him say that there are many films that have not been completed. I do not know in what sense he can say that. If precious little work has been done on films for a number of years, I should have thought it must be supposed that they were completed.
The Minister mentioned subsection (1)(b), which refers to
"the calendar year in which it is first released".
My information—I do not know about films but I have made some inquiries—is that a film can be released only once. It is completed and released and that is when it becomes available to the public. There may then he a long interval of time and changes may or may not be made. Then it is re-released; it is not released a second or a third time.
Therefore, if the noble Lord is going to reconsider the clause he should consider using the words:
"the end of the calendar year in which it is released".
That would leave subsection (2) to read:
"A sound recording or film is 'released' when—
(a) it is first published, broadcast or included in a cable programme service".
That would be in accordance with usage in the industry.
5 p.m.
Lord Beaverbrook: I am grateful to the noble Lord. He asked me about films being completed. I imagine that there are many films where either the money runs out or the leading star has died and it has not been appropriate to complete the film. Perhaps in later years it is either completed, if it is regarded as being of artistic or historical merit at that time, or, when a
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certain number of years have passed, the film may be recut and released so that it may earn some money even though the film itself is shorter. As regards films which are re-released in a different form, I appreciate the concern of the noble Lord. In coming back with our thoughts on the subject, we shall take account of everything which he has said.
Lord Kilbracken: I am grateful to the noble Lord and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clause 14 [Duration of copyright in broadcasts and cable programmes]:
On Question, Whether Clause 14 shall stand part of the Bill?
Lord Williams of Elvel: I have a small question on Clause 14 which concerns the duration of broadcast copyright. It is not a matter for an amendment but it is one on which I hope the noble Lord can help me. There are a number of broadcasts which are in serial form—there are a series of broadcasts—and we can all think of many broadcasts which are serialised. As drafted, the Bill makes it clear that the copyright in a broadcast expires at the end of 50 years from the end of the calendar year in which the broadcast was made.
If we take the case of a serial which goes over the year end—and one can think of many television serials which go over the year end—is it correct that there will be two periods during which copyright subsists, one for those parts of the serial which are broadcast before 31st December and the other for those parts broadcast in the new year?
Lord Beaverbrook: I believe that to be the case. There would be a split year at the end of the 50-year period; that is, the copyright on the first part of the series would run out one year earlier than the copyright on the second half if it had straddled the year in its original broadcast 50 years earlier.
Lord Williams of Elvel: I understand the reply but I find it a bit odd, if I may say so. Serials, such as many which we have seen on television, seem to be part of one entity. To have a split period of copyright seems slightly curious. No doubt when the Minister receives further information from a certain quarter he will be able to enlarge on the reply which he has just given me. I hope that that reply will enlighten me so that I will not have any further contribution to make.
Lord Beaverbrook: I am most grateful to the noble Lord. Each broadcast of a serial is a separate broadcast. There may thus be more than one period of copyright in a serial. However, we shall look carefully at what the noble Lord has said and see if that makes sense.
Lord Hailsham of Saint Marylebone: If one considers a serial or soap opera such as "The Archers", the earlier episodes date back to the time

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when my children were so high. One of them has just married at the age of 40. We are getting on! However, it must be the case that each programme of "The Archers" has a separate date from which the duration of copyright proceeds.
Lord Williams of Elvel: Indeed, that is why I particularly did not mention "The Archers", which seemed to me to be a long-running serial on which there might be problems. However, if we consider serials such as "Fortunes of War", "Brideshead Revisited" or whatever it might be, those are of slightly shorter duration in their totality and should possibly be seen as discrete. I use that word purely in the sense of boundaries in that there are clear limits. There is a beginning and an end to such serials, and perhaps the noble Lord would like to look at the possibility that, unlike the constant-running soap operas and such programmes, they may be in a special category. However, I shall say no more.
Lord Kilbracken: I completely agree with what the noble and learned Lord has said as regards serials. However, there is a point which worries me and which I mentioned in a letter I would be raising. That is the case of a repeat broadcast. That matter is mentioned in subsections (2) and (3). I cannot see any necessity for the two subsections. Surely there is no separate copyright in a repeat broadcast. A broadcast has its own copyright and a repeat broadcast is covered by the same copyright. There is no need to say that copyright expires at the same time as the copyright on the original broadcast. It is the same copyright.
Lord Beaverbrook: The subsections mentioned by the noble Lord, Lord Kilbracken, restate the effect of Section 14(3) and Section 14(4)(a) of the 1956 Act. There is a difference between a repeat broadcast and a second edition of a book. A book is always a reproduction of the original work or of the typographical arrangement of a particular printing. However, each broadcast is new. A person who copies a repeat broadcast does not copy the first broadcast because a repeat broadcast will not be made from a recording of the first broadcast. It will be made from a recording made at the same time as or even before the first broadcast.
When the BBC makes a live broadcast and also makes a recording so that it may repeat the broadcast, it does not make the recording by receiving its own broadcast off-air but by making a parallel simultaneous recording of what is being broadcast as it goes out. For copyright protection to be adequate, each repeat must be given its own copyright, albeit for an abbreviated time.
Lord Kilbracken: I should like to study that. I may come back to it.
Clause 14 agreed to.
Clause 15 [Duration of copyright in typographical arrangement of published edition]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 64:
Page 8, line 21, leave out ("25") and insert ("50").
The noble Lord said: I beg to move Amendment No. 64 standing in my name and that of my noble friend Lord Morton of Shuna. It is a simple probing amendment to find out from the Government the reasons for the 25-year period of copyright in the case of a typographical arrangement. is that particularly important? Why should the period not be 50 years? This is a purely probing amendment, and in that spirit I beg to move.
Lord Beaverbrook: I am grateful to the noble Lord for raising the matter. The amendment seeks to double the duration of copyright protection. I have already indicated the Government's intention to leave the provisions relating to copyright in a typographical arrangement largely unchanged. While the publishers will doubtless be grateful to the noble Lord for his concern for their interests, we believe that the 25-year term presently provided by Section 15 of the Act is quite adequate. A doubling of the term would, we believe, be inappropriate.
Lord Simon of Glaisdale: Has the noble Lord considered those poems the whole essence of which is the typographical arrangement? Historically, there was a poem in the shape of a butterfly. In quite modern times there were poems by Cummings, for example, where the whole essence was the typographical arrangement. For the moment, I cannot see why the period of copyright should not be the normal one in the case of a literary work.
Lord Campbell of Alloway: If it is of any assistance to the Committee, certainly the view of the Society of Conservative Lawyers' Patent and Copyright Committee is that this would be an undesirable amendment because typesetting can hardly deserve such a long period of monopoly. That is the view of the committee which, albeit political, does not operate politically.
Lord Williams of Elvel: I am most grateful to the noble and learned Lord, Lord Simon of Glaisdale, and to the noble Lord, Lord Campbell of Alloway. I did not hear in the reply from the Minister any particular reason why this should be so. He explained why it was so and why the Government intended to hold their position, but I did not actually gather why it should be the case. In view of the intervention by the noble and learned Lord, Lord Simon of Glaisdale, we deserve a slightly more comprehensive answer.
Lord Beaverbrook: I attempted to give a rather simple answer, and that is what the answer is—very simple. The provision of copyright for 25 years is in the 1956 Act and we intend to leave the provisions relating to copyright in typographic arrangements as they are in that Act. The example given by the noble and learned Lord, Lord Simon of Glaisdale, of a poem in the shape of a butterfly would probably be regarded as an artistic work and protected for life plus 50 years.
Lord Williams of Elvel: I am very grateful to the noble Lord and I hope the noble and learned Lord is also satisfied with the explanation concerning the

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butterfly. I am still not entirely clear; and, as always, I shall study very carefully what the noble Lord has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 15 shall stand part of the Bill?
Lord Williams of Elvel: I wonder whether the noble Lord could help me on one point? We are now leaving Chapter 1; and if I might refer to the contents of that chapter, in Article 2 the Berne Convention does refer to "dramatico-musical works". There is a hyphen between "dramatico" and "musical". I said at an earlier stage in Committee that there are works which cross these boundaries. May I ask the noble Lord why the Government decided not to follow the line of the Berne Convention, the Paris text, which the noble Lord said they have every intention of ratifying?
Lord Beaverbrook: I do not have an answer for the noble Lord but I shall write to him on that particular point and place a copy in the Library.
Clause 15 agreed to.
5.15 p.m.
Clause 16 [The acts restricted by copyright in a work]:
[Amendment No. 65 not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 66:
Page 8, line 39, after ("owner") insert ("knowingly").
The noble Lord said: I beg to move Amendment No. 66 standing in my name and that of my noble friend Lord Morton of Shuna.
We are dealing here with acts restricted by copyright. The purpose of the amendment is probing in a sense, to make sure that we are all convinced in this Committee that an infringement of copyright by mistake is nevertheless an infringement of copyright. It should not be a deliberate infringement of copyright or a "knowing" infringement of copyright (to use the word of the amendment) that should be properly attacked.
There are many occasions on which copyright can he infringed by mistake and without licence. I assume that the intention of the Government is that that infringement should suffer the same penalties as a deliberate infringement. This is why this amendment is put. I beg to move.
Lord Denning: I hope noble Lords do not accept this amendment. It is contrary to every principle of copyright. In any copyright case in which I have taken part you look to see whether the part which has been reproduced has been reproduced by the defendant. It does not matter whether he did it by mistake, he has done it. He is guilty of an infringement of copyright. For example, it may be a few bars in a musical work. You look to see whether the defendant has used those bars and it does not matter whether he thought they were his own
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invention or otherwise. If he did use them then he is guilty of infringement of copyright. The same considerations apply regarding any literary work or anything which you have written. You only have to see whether the defendant has copied or used it. Whether he did it intentionally or unintentionally does not really matter. It is an infringement of copyright. Inserting the word "knowingly" will alter the whole principle upon which copyright stands. I hope the amendment will not be accepted.
Lord Lloyd of Kilgerran: May I supplement what the noble and learned Lord has just said? The insertion of the word "knowingly" will offer a loophole for copyists to escape. It is very difficult to decide whether a defendant has been doing something knowingly. It may be helpful if I add to the increasing knowledge of the legalistic matters involved in copyright for the noble Lord, Lord Williams of Elvel. There is a concept of an innocent infringer. If a man can establish he is an innocent infringer that fact goes towards the amount of damages which can be awarded against him when the action is finished.
Lord Campbell of Alloway: I also hope that the Committee will not accept this amendment for the reason which has been so ably given. This is part of the vice of Clause No. 22 which we will come to. I merely mention that in parenthesis.
Viscount Brentford: I hope, too, that the Minister will resist the amendment for the reason specified. Clause No. 87 gives to the defendant quite sufficient defence. I hope that this amendment will not be accepted.
Lord Williams of Elvel: I am most grateful to those who have taken part in this debate. I prefaced my remarks by saying that this was a probing amendment. It was not intended to do other than elicit certain information from the Government. The noble and learned Lord, Lord Denning, treated me to a long story about how it should not be inserted into the Bill. There was never any intention to insert it into the Bill. It was a probing amendment. I have elicited the best response from the noble Lord, Lord Lloyd of Kilgerran, which is the concept of the innocent infringer. I think that is a very interesting point which the noble Lord has made. That has been put on the record very clearly by the noble Lord, Lord Lloyd, and that helps me. Having probed a little, I now wait to hear what the Minister has to say.
Lord Beaverbrook: I am very grateful to the noble Lord, Lord Williams of Elvel, for explaining so clearly to the Committee the probing nature of his amendment. The basic principle in our copyright law has been that the copyright owner has the exclusive right to do the various restricted acts and that there is strict liability for infringement. There are infringements known as "secondary infringements" where a degree of knowledge is required. We will deal with these when we come to Clauses No. 22 to 26.
In Clause 16 we are concerned with primary infringement. The copyright owner must have the

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protection of strict liability. If a man takes my car, however mistakenly and innocently, I am entitled to sue him for damages. It is the same for copyright.
Perhaps I may draw the attention of the Committee to Clause 87(1) which re-enacts Section 17(2) of the 1956 Act. As the Committee will see, this relieves some innocent infringers from damages but not from other remedies such as injunctions. That, we believe, strikes the right balance. The copyright owner has the exclusive rights. He should be able to stop unauthorised exploitation of his work and be paid damages in respect of such use. If, however, the infringer was using the work unaware of the copyright he should not be liable for damages but should of course be required to stop his infringing behaviour.
Lord Williams of Elvel: I am grateful to the noble Lord. This has been a useful exchange and I beg leave to withdraw my probing amendment.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 67:
Page 9, line 1, leave out ("substantial").
The noble Lord said: I beg leave to move Amendment No. 67 in my name and that of my noble friend Lord Morton of Shuna. It may be for the convenience of the Committee if I speak also to Amendment No. 69.
We are concerned here with the meaning of the word "substantial" in Clause 16(3)(a). I have not attempted to give a meaning to that word. My amendment is a purely probing one to find out what are the Government's thoughts on the matter. However, my noble friend Lord Ardwick and the noble Baroness, Lady Stedman, have attempted to describe in their amendment what they think "substantial part" should mean. I do not wish to comment on the amendment of my noble friend Lord Ardwick until I have heard what he has to say about it, because it is difficult, even on a grouped amendment, to comment on something that one has not yet heard. However, I hope that we will have another relatively short debate on how the Government see the meaning of the word "substantial" and whether my noble friend's definition is acceptable. I beg to move.
Lord Denning: The words "substantial part" have been in statutes from the beginning. They have been interpreted by the courts in cases which give light to anyone who has to consider them. It has always been said that it is not quantity but quality that is important. If a few key words in a poem are taken, that is a substantial part, even though the poem has 100 stanzas. If you take one key stanza, that is a substantial part because of its quality. The courts have always said that they can interpret "substantial part". They do not want left out words which have appeared in every statute enacted.
Lord Ardwick: I speak to Amendment No. 69, which attempts to do exactly what has been suggested. It states that a substantial part is:
"any proportion of a work which is significant in relation to the whole and/or which so encapsulates the essence of the work as to render
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purchase of the complete work unnecessary excluding any exceptions made by regulations in respect of copying by prescribed libraries".
The references in this part are to the doing of an act restricted by copyright in relation to the whole or any substantial part of it.
What is a substantial part? When does a part begin to be substantial? That is a problem for a librarian operating a copying service. Unless he is familiar with the case law on the subject he has no guidance and may innocently offend, or, what is more probable, be too cautious and provide a library member with less than he can fairly expect. It is also a problem for the copyright owner because users might assume from the general idea of fair dealing that they can interpret this rather liberally.
It is also necessary to show that a substantial part concerns the content and not just the extent of the material which is copied. Therefore, this is an attempt to define "substantial part" in accordance with case law. The amendment proposes:
"References in this Part to 'substantial part' are to any proportion of a work which is significant in relation to the whole".
The definition goes further and uses the phrase "encapsulates the essence". In other words, nobody is entitled to tear the guts out of the work which might easily be done, for example, if the author sets out his conclusions and the arguments for them in an economical way at the beginning or the end of his book. Those vital compressed pages at the very heart of the book might be held to be a more substantial part of it than a longer extract in which the author just goes waffling along.
Of course it is necessary as a precaution to exclude any exceptions made by regulations in respect of copying by prescribed libraries. However, this clause, taken in conjunction with the definition of "reasonable proportion" in Clause 39, would be of considerable assistance to the librarian and especially to members of the public who go to him for that service.
Clause 39 is the part of the Bill which says what a librarian may copy and supply from a published edition of a,
"literary, dramatic or musical work (other than an article in a periodical)".
He must take care not to supply more than a reasonable proportion of any work. In the words "substantial part" and "a reasonable proportion", one phrase deals with quantity and quality and the other deals entirely with extent. Those are his general guidelines. The object of this amendment is to make them more specific and practical in the everyday work of the library.
Lord Hailsham of Saint Marylebone: I hope I may be forgiven for saying that I vastly prefer the approach of my noble and learned friend Lord Denning to that which we have just heard on the amendment in the name of the noble Lord, Lord Ardwick. I believe that in principle it is misguided to try to turn what must be a question of fact and degree into a question of law by definition.
The noble Lord has, for reasons I will try to give, succeeded in making mistakes and has failed to protect the copyright owner in the actual form which

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he has chosen to adopt in his Amendment No. 69. However, with great respect to him, the attempt is misguided in any form. The courts have to deal constantly with questions of fact and degree. They relate to the facts of a particular case.
I remember a phrase which copyright lawyers—of whom it may be gathered I am not one—used again and again with considerable effect in argument; that is, if it is worth copying, it is worth protecting. I believe that is the fundamental wisdom of this subject, and for the purpose of identifying what is substantial I think it is a principle which must have relationship to the actual item which is being discussed. A great variety can be discussed.
I appreciate that if one talks in terms of a librarian or a literary work, there might be something to be said on the lines put forward by the noble Lord, Lord Ardwick. However, let us take the case of an engineering drawing. about which we had a short discussion in a totally different context at the last Committee Sitting. A part, in relation to an engineering drawing, may be of substantial importance but it cannot bear relation to
"any proportion of a work which is significant in relation to the whole".
It is in fact the originality of the artistic work which really needs the monopolistic protection of copyright. If it is worth copying, it is worth protecting. It does not relate to the size of the part which is copied simply as a proportion of the whole.
I must, with great respect to the noble Lord, Lord Ardwick, draw the Committee's attention to the use of the words "and/or" in Amendment No. 69. I regard that as an abomination of desolation because one does not know whether it means "and" or "or". It cannot mean both. The test is not:
"to render purchase of the complete work unnecessary";
the test is: if it is worth copying, it is worth protecting. For that reason, I should prefer the words of the statute to remain as they are.
5.30 p.m.
Viscount Massereene and Ferrard: I shall intervene with these two eminent and learned lawyers. I have always felt that there is an unholy alliance between the parliamentary draftsman and the legal profession. Apart from the word "substantial", we also have words in statutes such as "reasonable". With a word like "reasonable" in a statute, lawyers can make fortunes. They can argue about it for days. They may not be able to make so much money out of "substantial". They can make a great deal. I sympathise with the amendment, but after hearing my eminent noble and learned friend say that he is for "substantial", my support for the amendment is not so strong.
Lord Willis: All my doubts except one have been resolved by the noble and learned Lord, Lord Hailsham. That remaining doubt is in relation to films and videos. I am concerned about the possibility of taking a tiny clip from a major film for use in advertising. We have on the box at the moment some commercials that are cleverly clipped together. There
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is, for example, a shot of Gary Cooper which comes from a genuine film. The commercial then cuts straightaway to someone else saying, "Would you like a Holstein?" or something of that nature. I am sure that the makers of the Gary Cooper film have their position well protected and that the makers of the commercial have to pay for the shot. But is the Bill, as drafted, sufficient to protect film and video from invasion and copying without payment? Would it not help if there were a definite phrase in the clause which specified film and video? Does the word "substantial" protect the film and video maker along the lines mentioned by the noble and learned Lord, Lord Hailsham?
Lord Denning: If I may answer, I should say yes on the principle that if something is worth copying, it is worth protecting.
Lord Campbell of Alloway: As I understand Amendment No. 67— I shall be corrected if I am wrong—it could prevent the copying of a few words which, according to established case law, would qualify for protection. If that is so, surely it would be undesirable.
Although Amendment No. 69 is well-intentioned, the very attempt to clarify lacks clarity—it has to by virtue of the essence of the problem, the nature of the beast. Case law and established principles are surely apt to deal fairly with the situation.
Lord Lloyd of Kilgerran: I should like to presume to take up the cudgels against the two noble and learned Lords a little more firmly than the noble Lord, Lord Willis, has done. It is difficult to decide what is a substantial part. One can go on arguing about it, and I have done. I have had long talks with the judiciary about what is a substantial part. For instance, what is the position if one has a painting at the bottom of which there is a significant figure or there are some flowers, and someone then copies that part? It is only a small part of the whole, but it is a significant part.
I find Amendment No. 69 helpful in so far as it states:
"References in this Part to 'substantial part' are to any proportion of a work which is significant".
The words "any proportion of a work" are significant in the example that I have given. It possibly follows the point that the noble Lord, Lord Willis, had in mind in relation to films and videos. I find that the amendment is of some help with saving expense and in giving a more practical view of what "substantial part" means in this context. Of course I agree with the noble and learned Lord that "and/or" is, to quote his phrase, "an abomination of desolation".
Lord Simon of Glaisdale: I agree with everything that my noble and learned friend said, with the exception of the last part to which the noble Lord, Lord Lloyd, referred. I have always regarded the phrase "and/or" as one of the law's few useful contributions to the English language.
The danger in trying to codify what is a matter of fact and degree (the point made by the noble and learned Lord, Lord Hailsham) is that one is almost

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certain to leave out the crucial question that will arise before the courts. The noble Lord, Lord Willis, gave a good example of that. It is much safer to leave the word "substantial" to cover what is essentially a matter of fact and degree.
This is not by any means the only body of legislation in which the word "substantial" occurs. I have heard this argument over and over again; for example, in landlord and tenant and rent restriction legislation. The noble Lord, Lord Ardwick, has skilfully encapsulated (to use his own word) the existing law, but it leaves the danger that cases will turn up which are not covered by his definition, but which may well be held to be substantial in the total circumstances.
Lord Kilbracken: I was sorry when my noble friend Lord Williams once again announced that this was a probing amendment. When he talks about his probing amendments, we understand that he does not want them to be incorporated in the Bill. I should like to see his amendment accepted, and the word "substantial" deleted, because copyright should be infringed if far less than a substantial part of the work is published.
I feel inclined once again to give an example of what I mean in relation to a newspaper article. We must remember that the provision applies to short works, such as a newspaper article or a news story, as well as to books. During the summer, I wanted to publicise some of my views on the Gulf War, in which I happen to have a considerable interest and a reasonable amount of knowledge. I do not usually write articles unless they are commissioned, but on this occasion I wrote a short article of about 800 words, which I sent to the editor of the Sunday Tribune, a Dublin newspaper. I heard nothing from it until the following Sunday. I did not find my article when I searched for it in the newspaper. However, on the leader page I found that the main item was devoted to a piece about the politics of the Gulf War which exactly reflected my own opinions and which quoted a good many of the facts I had provided in my article. It even included an unintentional mistake which had slipped into my copy.
I was a little put out that the editor of the Sunday Tribune had simply taken my copy and used it to write his leader article without reference to me; I am on the telephone. I could have given additional facts that he had added himself. I thought "I suppose I shall invoice him for £100". However, when I did so I was told, "No, my leader had nothing to do with your article. I read it and then decided to write my leader and it so happens that my views completely coincided with yours". I must say that my views were rather original and unusual.
There is no doubt whatever that there was a substantial part of my article that was used as a leader in the Sunday Tribune. It was perfectly easy to tell that I had been the only begetter of Mr. Vincent Browne's leader. I could possibly take the matter to court. I have no intention of doing so for £100, or 100 guineas, or whatever it may be. But I feel that if a substantial part of a literary work must be published before an infringement of copyright is involved, it leaves one at the mercy of some newspapers that are
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unworthy of the name. The Minister's noble grandfather would never have behaved in that way.
Lord Lloyd of Hampstead: Surely the main objection to amending the subsection by leaving out the word "substantial" will lead to even more unsatisfactory results. A few trivial words—trivial in every sense—could be used in the alleged infringing document, and as those words were undoubtedly a part, even though not a substantial or a significant part, one would necessarily have an infringement. Surely the very reason why one has this word "substantial" in the existing legislation is in order to avoid that result.
With regard to the case that the noble Lord, Lord Kilbracken, puts before the Members of the Committee, I should have thought that if all that has been borrowed from him, however important and valuable they may be, are ideas and arguments, and not the actual form of the words that he has used, there would be no infringement whether the law refers to "any part" or "any substantial part". One cannot have an infringement in copyright unless one has copied the form of the words.
I support the retention of the word "substantial" in the existing law. As has been strenuously argued by others, that is a better formula than the attempt to formulate it in precise terms. If one does that, one will inevitably leave out something significant that one will not have anticipated.
Lord Denning: If I had been trying the case of the noble Lord, Lord Kilbracken, I should have decided in his favour. If the editor had taken a substantial part, even one or two words, I should have decided in his favour.
Viscount Brentford: Perhaps I may express one slight anxiety. Amendment No. 67 would certainly change the law by the omission of the word "substantial", and the law is intended by this Bill to be continued in its present form, as has been so ably declared by the noble and learned Lord, Lord Denning.
I am concerned that if the courts were to assess the meaning of "substantial" from scratch again they might change their views. I therefore see that Clause 156(3), which continues the existing case law inter alia, is very important. There is an amendment before the Committee to delete it. My support for removing these amendments that we are now discussing would certainly be dependent on that amendment not being carried. I am sure it is important that the law is no less tight than it is at present.
Lord Ardwick: The object of the amendment was not to guide the courts but to guide the librarian and the amateur copier. If one is going to put a sign up in front of a copier in a public library telling him that he cannot take a substantial part of it, he can ask, "What is a substantial part?" This is an attempt to give him guidance. We are all copiers nowadays and we need to be kept out of the courts. I am quite willing to withdraw my amendment and to have another attempt at a later stage to devise a more satisfactory warning.
5.45 p.m.
Lord Beaverbrook: I am most grateful to all noble Lords who have spoken in our short debate on this amendment. I am sorry to hear of the experiences of the noble Lord, Lord Kilbracken, but no doubt if he wishes to take the matter further he does not have to look very far for the very best legal advice.
Although copyright was initially aimed at the prevention of the reprinting of whole books, it became established in the early development of copyright law that the copying of part of a work should also be stopped. The 1911 Copyright Act introduced the concept of the protection of "a substantial part" to the statute book which was continued in the 1956 Act and now in this Bill. The principle is of course generally applicable to all restricted acts—not just copying—as subsection (3) makes plain.
It is clearly right that the restricted acts should not be confined to acts done with the whole work but the removal of the word "substantial", as proposed in Amendment No. 67, would go too far. It would mean that the copying of any part, even a word or a sentence from a 1,000-page novel, would constitute infringement. That is clearly wrong. We believe that the term "substantial part", on which the courts have pronounced, should remain. Perhaps I should add that "substantial" does not necessarily mean a large part of the work. Even a small part, such as the soliloquy in "Hamlet", can be substantial depending on the circumstances. But to say any part whatever, without qualification, is going too far.
This brings me to Amendment No. 69. I do not think that we should attempt to define the words "substantial part" either in the terms proposed in this amendment or in any other way. These words have been the subject of much illuminating jurisprudence over the years and for most practical purposes their central meaning is clear, particularly to those who are closely involved. I shall of course admit that at the margins there is room for doubt. But I would strongly suggest that this is in fact an advantage. The undefined concept of "substantial part" gives the law a desirable, indeed a necessary, flexibility. The great danger of a statutory definition in this kind of case is that the law becomes too rigid to adapt to particular or changing circumstances.
Amendment No. 69 is a useful and, if I may say so, a valiant attempt at a definition. But I do not think it is necessary, and it may well store up problems for the future.
Lord Williams of Elvel: I am grateful to noble Lords and noble and learned Lords who have taken part in this debate. I still believe that there is a problem with the word "substantial" in this context. The noble Lord, Lord Lloyd of Kilgerran, and my noble friend Lord Willis made some very cogent points about it. I also noticed that the noble Lord, Lord Lloyd of Hampstead, began to slip from "substantial" to "significant". I wonder whether there may be a compromise which the Government feel meets the point which has been clearly made by the noble Lord, Lord Lloyd, and my noble friend Lord Willis. I offer that as a possible sop if the
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Government need one. We have had a good discussion on this amendment. We may return at a later stage to this point, but we shall read what the Minister said very carefully. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 68:
Page 9, line 5, at end insert—
("( ) It shall not be a defence in an action for infringement of copyright that the infringing work was intended to be a replacement part. However, nothing in this subsection shall derogate from the right of the owner of an article to repair it himself or cause it to be repaired on his direct instruction.").
The noble Lord said: In the White Paper of April 1986 (Cmnd. 9712) the Government promised:
"The spare parts exception expounded by the House of Lords will not apply, but there will be a more limited exception to enable the owner of equipment to repair it or contract for someone else to repair it".
I suggest to the Committee that the clause does not achieve that promise. My amendment is designed to ensure that repair by replacement is not a right that is passed on to the purchaser of an article from a copyright owner. It draws a distinction between repairing an article, which has genuinely been broken, and replacing an article that has reached the end of its expected life, such as a light bulb or a turbine blade. I believe that there is a gap in the Bill in this respect. My amendment is designed to try to fill the gap and to meet the Government's own promise. I hope that at least the sense of this will be acceptable to my noble friend. I beg to move.
Lord Hailsham of Saint Marylebone: That raises a question of policy of rather a more difficult kind than would appear from the simple and admirably concise way in which the amendment has been moved. I should like to draw to the attention of the Committee what I believe is involved in it. There was a recent decision—admittedly a controversial decision—of your Lordships' House in its judicial capacity. Happily I was not involved in it and I can speak with complete impartiality. The matter has raised a good deal of controversy in the professional press. In Clause 17(2) one finds that copyright, in relation to an artistic work,
"means reproducing the work in any material form".
An artistic work includes for this purpose the engineering drawing of the spare part of a motor car. Following a case called Swish (which I shall not go into because I was involved) there was a decision of the House of Lords about British Leyland.
I shall try to summarise a very complicated matter fairly if I can, because I wish to do so as fairly as possible. British Leyland had on its engineering drawings of the exhaust part of a motor car a drawing which made it impossible for anybody to create in three dimensions the exhaust part of that motor car except by producing a three-dimensional version of the engineering drawing.
In order to protect its Unipart subsidiary or associate, it sought to prevent a private enterprise firm outside the group from selling exhaust parts which fitted that model of motor car because it was said by British Leyland not that the exhaust parts

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themselves were artistic works but that they were reproductions in three dimensions of the two-dimensional drawing upon which the part was made. We have all seen the development of the Gillette razor blade over the years. One gets a key which covers any kind of replacement blade for safety razors.
There is therefore an interesting question of both philosophy and policy involved here. It is not a simple matter. I do not pretend it is; but I think I am on the side of the judicial element in this Chamber and not on the side of my noble friend. It is a question of policy ultimately to decide and it goes deeply into the philosophy of intellectual property. The noble Lord, Lord Wyatt, who is not now in his place, at an earlier stage of the debate, and other noble Lords at various parts of our Committee stage, have referred to copyright as property. That is correct because it is a form of property. Nonetheless, we are not only talking about property in the sense in which the noble Lord, Lord Wyatt, referred to it as something he wished to leave to his grandchildren: for example, a farm, a work of art by a French impressionist or something of great value. We are also talking about monopoly. It is important to realise, whenever one is dealing with the law of intellectual property, that one has two conflicting interests to give effect to. One has to draw a line—and it cannot be a straight line—between the interests of preventing monopoly and the interests of preserving the right of intellectual property.
My feeling is that in the case which I have sought to describe, although I should not go along with every word of the judgment, the House of Lords in its judicial capacity was right to stop British Leyland doing what I have sought to describe, although I sympathise very much with the feelings of British Leyland in this matter. I do not think we should accept the amendment without knowing where we shall stand on this rather difficult question of policy.
Lord Denning: This is obviously a difficult and debatable part of the law. In those circumstances let us try by an amendment to make it clear for those who have to follow it in the future.
Lord Beaverbrook: As we have heard the amendment seeks to overturn the judgment of the noble and learned Law Lords in the case of British Leyland v. Armstrong Patents Company so that copyright can be used to prevent the manufacture of replacement parts needed to repair or restore a piece of equipment.
This is of particular concern in the field of industrial designs; but we are of course proposing to take these out of copyright altogether. This is the object of Clause 51. The result would be that the amendment would be effective only in respect of articles which are themselves artistic works. Its impact would therefore be very small because such articles, by their very nature, are not likely to be sold in vast quantities. It is therefore very unlikely that anyone would want to go into production in anticipation of a demand for spare parts, and the amendment would in any event preserve the private right of the owner of an article to have it repaired. In
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addition, it is by no means plain that British Leyland v. Armstrong Patents Company applies in respect of articles which are themselves artistic works. Consequently the amendment would have very little practical significance. Indeed, we find it difficult to understand what practical problem this amendment is intended to meet. Light bulbs and turbine blades are not artistic works.
My noble friend Lord Mottistone is not correct to say that the White Paper undertaking on the spare parts exception and expounded by the Judicial Committee of your Lordships' House in the case of British Leyland v. Armstrong Patents Company has not been carried out. That undertaking applied to the new design right set out in Part III of the Bill, not to copyright law. I refer my noble friend to paragraph 3.27 in Chapter 3 of the White Paper. Perhaps my noble friend will give me some examples of the sort of items he is seeking to protect.
Lord Williams of Elvel: Before the noble Lord, Lord Mottistone, replies to the Minister, perhaps I can assure him and the Committee that we are fully apprised of what the noble and learned Lord, Lord Hailsham, said: that this is a matter of policy and not simply a matter of amending the Bill. Just in case the Government think that the Opposition have taken Trappist vows and have nothing to say on the matter, we were expecting to discuss policy, as the noble Lord said, at a later stage.
6 p.m.
Lord Mottistone: Yes, indeed; and we shall return to this subject in much greater detail at a later stage of the Bill. It is in this part that we sought to cover the points I made. We saw that in certain circumstances it would be difficult to determine whether or not certain kinds of articles were works of art. The Bill seeks to cover that point in Clauses 3 and 4 where it defines a whole range of what I would call near the knuckle articles which some people might not consider to be artistic.
It is frightfully difficult to give an example to my noble friend because one of the things we are trying to do is to ensure that when the Bill becomes an Act it will stand on its own feet into the future when there are new inventions which have not been thought of yet. It is in that area that one wants to feed in the extra protection to which I have referred. However, I take on board the point made by my noble and learned friend Lord Hailsham. I am grateful to him for describing so succinctly the lawsuit which I have been striving to understand for some time, because it will come in useful later. I shall read what my noble and learned friend Lord Hailsham and my noble friend the Minister have said, and may come back to this at a later stage. At this moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 69 not moved.]
Clause 16 agreed to.
Clause 17 [Infringement of copyright by copying]:
The Deputy Chairman of Committees (Baroness Cox): I should point out that if Amendment No. 70 is agreed to, I cannot call Amendments Nos. 71 or 72.
Lord Mottistone Lord Mottistone moved Amendment No. 70:
Page 9, line 14, leave out subsection (2) and insert—
("(2) Copying in relation to a literary, dramatic, musical or artistic work means fixing the work, whether permanently or momentarily, and for whatever purpose, in any medium for which the work can in principle be reproduced, and includes storage of the work in a computer.").
The noble Lord said: This is a fairly composite set of amendments. I shall speak to Amendments Nos. 70, 78, 92 and 110, which are in my name, and I think it would be for the convenience of the Committee if we also consider Amendments Nos. 71, 72, 79 and 80.
At present Clause 17 does not seek to reflect paragraph 9.5 of the 1986 White Paper and does not give the protection offered by Section 2 of the Copyright (Computer Software) Amendment Act 1985. The computer software industry generally makes available its products by licensing their use. The proposed exclusion of storage as an infringement, where done for the purposes of running the program, would undermine the whole basis of licensing in this area.
Criminal cases already prosecuted under the 1985 Act with the assistance of the Federation Against Software Thefts have been based on dealers making illegal copies by storing computer programs on hard disc and supplying these on to customers without authority and without payment of licence fees. The customer is not given an illegal copy as such but only a computer system with copy loaded on to the hard disc. Subsection (7), which I seek to delete in Amendment No. 78, raises serious doubts about whether these would remain infringements and be capable of constituting offences.
The distribution of copyright works, including literary, artistic and musical works, is no longer done solely by printed paper and gramophone record. The author of a literary work or the painter of a picture can have the work stored on a computer database from where it is distributed for display on screens in both the home and the office. Modern technology has made it possible for the display of copyright works on screens large or small, either in the home or in public places. That distribution display of the works is now the way in which a creator ultimately receives the reward for making the work available.
Viewing a copyright work either in the home, in the cinema or other public places has never been a restricted act and should not be contemplated as in the Bill. However, unauthorised reproductions and distribution, which previously was effected mainly through printed paper copy, has been prohibited since 1709 and the substitution of electronic displays for books should not change the concept. The storing in a central computer of a computer program and the distribution of it on demand to a distant computer is exactly analogous to the distribution of other literary works and the infringing act should be the same.
That rather lengthy statement, which I thought it necessary to make because we are into a complicated
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area of what modern technology can do, really covers my Amendments Nos. 70 and 78, which go together. Before I leave them I should say that in Amendment No. 70 we refer to "fixing the work". I think it is necessary to define the word "fixing". I have put down an amendment to that effect which is in the supplementary Marshalled List, but these amendments have not yet been allocated numbers. Those will no doubt appear the next time we have a new Marshalled List. I shall see how this amendment goes before deciding whether to bring it forward later.
As regards Amendment No. 92, as currently drafted Clause 21 is not consistent with the 1985 Act. The translation of a computer program may take place on the fly; that is to say, the machine can work so quickly that it will not only translate but run the program at the same time. The running implies that a copy has been made, and as with Amendment No. 78 the creation of this copy should be regarded as an authorisable act.
I turn now to Amendment No. 110. Much of what I had to say in relation to Amendment No. 70 applies here. The specific reason for this amendment, which again introduces the phrase "fixing of the work", is to ensure that works held on any media such as optical discs or laser cards made without the authorisation of the copyright owner are infringing articles.
My four amendments go together. I trust that my noble friend the Minister will be able to consider the principle of them, if not the detail. I shall be interested in due course to hear what he has to say. At this stage, I beg to move.
Lord Williams of Elvel: I too will speak to Amendments Nos. 70, 71, 72, 78, 79, 80, 92 and 110. Amendment No. 71 is simply designed to raise the problem rather than provide any particular solution. I believe that Amendments Nos. 70 and 72 are attempts to provide a drafted solution to the problem that we recognise, and indeed the same can be said of Amendments Nos. 78 and 79.
I am generally sympathetic to the arguments that the noble Lord, Lord Mottistone, has put forward. The technological developments are rapid and indeed will be increasingly rapid in the future. The Bill, if it is to be a statute which has to last for 20 to 30 years, has to take account not only of the existing state of technology but, so far as we can, any estimate of the future state of technology. That is why an amendment along the lines proposed by the noble Lord, or the noble Lord, Lord Lloyd of Kilgerran, is necessary in the Bill.
Of the two versions I should opt for that of the noble Lord, Lord Lloyd of Kilgerran, on the grounds that, not only is it shorter (and that certainly has merit), but it also states the general principle without trying to get a bit too complicated in its wording. The noble Lord, Lord Mottistone, referred to an amendment that he had tabled after the Marshalled List was issued in order to define the word "fixing". I believe that the word "fixing"—and the noble Lord, Lord Lloyd, will no doubt correct me if I am wrong—is a term of art and is fully understood by all those who are active in this particular type of business. In short, I support the intent of the noble

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Lord, Lord Mottistone, in both series of amendments. I prefer slightly the wording of the noble Lord, Lord Lloyd of Kilgerran, but I leave it to him to explain his own interpretation of it.
Lord Denning: I hope that subsection (2) will remain as it is. Those words "reproducing … in any material form" are words of art which have appeared in every statute and which have been interpreted by the courts. It would be a pity to alter them in this statute because it might give rise to some argument that it meant something different. I hope the Committee will retain subsection (2).
The other amendments seem to me to be all very good—very explanatory but really not necessary. If the courts had to construe the words "in any material form" they would come to the same conclusion as these amendments do. Take, for instance, subsection (7) of Clause 17. That shows exactly what is covered by storing a work in a computer. It does not amount to certain other things, but it would amount to other things. In other words, if you read the whole of Clause 17 together it is sufficient as it stands without these amendments, which I would regard as merely explanatory of that which is there.
The Earl of Stockton: This is an area where we are attempting to fix the ground rules for the first two decades of the next century. If we think of 20 years ago, what we now know as the information or the communication revolution was no more than a match head in the white heat of technology. Colour television was just with us, the first LED watches had just arrived glowing red, the long playing record reigned supreme, and car radios were just that. Hi-fi was for experts with soldering irons, and the only pocket calculator was a slide rule.
My Amendment No. 80 specifies displaying work on a visual display unit as well as the hard copy print-out. By doing that it goes one stage further in the process than the amendment of the noble Lord, Lord Lloyd of Kilgerran. While I believe that Amendment 70, so ably propounded by the noble Lord, Lord Mottistone, covers both those points I should like his assurance that that is indeed the case.
Clearly Amendment No. 78, also in the name of the noble Lord, is of paramount importance since it is our contention that storing a work in a computer when viewing the work or running the program must be protected. After all in either case the product of one person's creativity is being consumed by another person.
I put it to the Minister that if he were to take a copy of a newspaper from a paper stall—let us say the Evening Standard—read it carefully from cover to cover, making a mental note of the time of curtain up at the Theatre Royal, Drury Lane, and then return it to the stall, the news vendor might, with some justification, demand payment. Similarly to consume the matter stored in a memory bank in any way must be subject to the restrictions of copyright.
Before the noble Lord, Lord Willis, suggests that this matter is best dealt with by contract, I would remind the Committee that to date efforts to enforce any conditions of use on computer programs have
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proved dismal failures. There is usually no privity. Accessing a program, to use a jargon phrase—with apologies to the noble Lord, Lord Kilbracken—is usually a primary use, not an incidental one as implied in subsection (7) of this clause. Therefore I am in full support of this amendment and Amendments Nos. 72, 78, 79 and of course 80. I shall not have to move the last of those amendments if this amendment is agreed to.
6.15 p.m.
Lord Lloyd of Kilgerran: I too, like the noble Lord, Lord Williams of Elvel, am generally sympathetic to what the noble Lord, Lord Mottistone, has said, and indeed, as he said, my name appears on one or two of the amendments. I am grateful to the noble Lord, Lord Williams, for expressing his views in support of several of my amendments and in preferring them to some of the other amendments.
I find myself in great difficulty here. As the noble Earl, Lord Stockton, said, this is an important clause. For the first time we shall be trying to delineate certain areas which have never been dealt with before in the legal system. Therefore, I am a little unhappy with trying to deal with all these amendments as a mosaic.
The question of the deletion of subsection (7) of this clause is vital, as the noble Lord, Lord Mottistone, and the noble Earl, Lord Stockton, indicated. I do not know what the Minister would prefer to do. My preference, if I may presume to put it forward, is that we now deal with Amendment No. 70 and perhaps the immediate amendments associated with it in the name of the noble Lord, Lord Mottistone, and myself combined, or in Lord Mottistone's name alone, and then deal with the other amendments seriatim. I take the view that Amendment No. 72, which has the support of the noble Lord, Lord Williams, and the noble Earl, Lord Stockton, and Amendment No. 78 are of vital importance.
As the Committee will see from the Marshalled List, I would take the view that if I get a sympathetic answer and the noble Lord, Lord Mottistone, gets a sympathetic answer to Amendment No. 78, it may not be necessary for me to move Amendment No.79. This is becoming a complicated matter, and I wonder whether the Minister would agree to these amendments being taken almost seriatim.
Lord Hailsham of Saint Marylebone: Perhaps I may make a suggestion here. I do not believe, if I have divined correctly what has fallen from the various noble Lords who have played a part in the debate, that there is any difference here about the question of policy. There is obviously a problem connected with draftsmanship.
I very much suspect that what my noble and learned friend Lord Denning said would actually prove in time to be correct. That is to say, if the courts were asked to decide it without any change in the draftsmanship of the law, I believe they would decide it exactly as my noble and learned friend Lord Denning described. But I should like to be reassured on that point simply as a matter of draftsmanship.

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There are various alternatives being put forward, of which I personally prefer that in the name of the noble Lord, Lord Lloyd of Kilgerran, that one must keep as closely to the existing law as possible. On the other hand, I was persuaded by my noble friend Lord Stockton that we need some reassurance that if that is done the effect will be what noble Lords wish it to be. That is that new developments in various forms of technology (some of which have taken place in the past 20 years but some of which will undoubtedly take place in the next 20 years; and I do not suppose that there is any noble Lord in this Chamber who can be sure as to the form that they will take in the next 20 years) and the intellectual property contained in literary, musical and artistic works, however fixed in the material form, should be covered, whatever they may have been and whatever they may have become.
I prefer simplicity where I can achieve it and I prefer to keep the law in a statute as closely to the form in which it has been handled by the courts as possible. However, I should like some reassurance from the Government as to whether the existing statute preserves the right, and will preserve it for the future, in the light of advances in technology. I should like some reassurance from my noble friend.
Lord Lloyd of Kilgerran: I agree with what the noble and learned Lord, Lord Hailsham, said about policy matters. However, some of the amendments go further than that because they relate to the understanding of the operation of high technology at the present time. The issue goes a little further than mere policy because, for instance, Amendment No. 72 is a technical matter which helps the policy aspect and makes matters understandable to the users of this technology.
Lord Beaverbrook: In reply to the noble Lord, Lord Lloyd of Kilgerran, I have arranged matters so as to speak to the amendments as grouped and as spoken to by other Members of the Committee. I shall be as helpful as possible to the noble Lord in my response to some of the amendments, so perhaps on this occasion he will agree that I may proceed in the order of the grouping.
Lord Lloyd of Kilgerran: As I told the Minister on the first day in Committee, what is his convenience is my convenience in this matter.
Lord Beaverbrook: I am grateful to the noble Lord.
Amendments Nos. 70 and 72 seek to deal expressly with the question of what is to be considered as the copying of a work in the context of the storage of signals representing copyright works in computer memories and similar devices. The Government accept totally that storing works in this way amounts to copying them. In drafting the Bill we have sought to frame concepts broadly, giving words their natural meaning. We have avoided, where possible, references to any particular technology, even something as all-pervasive as computers, for the reason that as time passes such references become
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limiting in nature even though the purpose of introducing them was originally to broaden the ambit of copyright protection.
That is why subsection (2) of Clause 17 does not refer to computers. We believe that computer storage of works is caught by the ordinary meaning of the words. I should point out that there can be no doubt on this score since subsection (7) of this clause, which removes certain incidental copying within computers from the definition of copying, would not otherwise be necessary. I shall return to subsection (7) shortly when speaking to Amendments Nos. 78, 79 and 80.
Having explained the reasons the Government arrived at the present drafting of subsection (2), I have to say that I am nevertheless aware that these amendments reflect quite widespread concerns and the Government are therefore prepared to take another look at the drafting of this subsection. I must add that in taking that further look we do not anticipate accepting Amendment No. 110, which we feel is not necessary. It would amend Clause 24, which deals with articles specifically designed or adapted for making copies of that work. The question of what amounts to a copy in this context is the same as elsewhere in the Bill and should be dealt with in Clause 17.
Amendments Nos. 78, 79 and 80 would have two effects. First, the act of viewing a work stored in a computer would become an act restricted by copyright in the work, because, in the nature of the way computers operate, it will involve reproduction of the work, albeit incidentally and temporarily. Secondly, the running of a computer program would also become an act restricted by copyright in the program because it necessarily involves transient reproduction of the program within the computer.
Subsection (7) of Clause 17 was included in the Bill precisely to avoid these effects. The reason is that copyright has never given the right to control the mere use of a copyright work, and without this subsection the owners of copyright in computer programs and in works stored in computers would be able to control the use of those works by means of the reproduction right.
Copyright law has always distinguished between the passive enjoyment of the information contained in a work as something which should not be regulated by copyright, and the making of a copy of a work which has a life of its own and which amounts to a primary infringement of copyright. If you own a book you may read it yourself without hindrance: a book in a library may be consulted by dozens of readers without infringing the author's or publisher's copyright. The kind of copying with which these amendments are concerned is more analogous to reading a book than to copying a book.
These amendments would therefore represent a departure from the principles I have outlined and we are therefore reluctant to accept them. This is particularly so in the case of viewing a work stored in the database since this is an act entirely analogous to consulting a book in a library. The taking of an unauthorised permanent copy of the viewed work would, needless to say, be an infringing act in any event.

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Nor are we entirely convinced that computer programs should have the additional protection that these amendments would provide. With the amendments, where a disc containing a program is sold on by an original purchaser then the second buyer might infringe copyright in the program merely be using the disc for its intended purpose, and this does not seem right.
On the other hand, we are aware of the argument that a benefit equivalent to owning a copy of a program oneself may be had simply by taking elements of a remotely stored program electronically as the program is run. We are therefore prepared to consider this problem in more detail and bring forward proposals to deal with it if this should prove necessary.
Turning to Amendment No. 92, it would have the result that every time a computer program was run, each conversion from one computer language or code into another would be a potential infringement of copyright. The amendment raises once again the matters debated in connection with subsection (7) of Clause 17. The Government have given an undertaking to look again at the question of whether the copying of a program in the course of running it should, at least in some circumstances, be a restricted act.
Whatever our conclusions on that question, I do not think it would be right to amend Clause 21 as proposed. If it is decided that running a program involves copying as a restricted act, then owners of copyright in the program have all that they need to control unauthorised use of their programs. If it is not so decided, then it would be wrong for them to obtain that control through the adaptation right.
Our view therefore is that this subsection should remain as drafted so that Clause 21 achieves its intended purpose, which is to ensure copyright control over translations and other adaptations which have more than a merely transient existence.
Turning briefly to Amendment No. 71 in the names of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, this amendment would have the result that reproducing a work in immaterial ways, such as by speaking or singing, would be an act of copying the work; that is an act restricted by copyright.
This would have profound and undesirable consequences. For example, reciting a poem or playing a piece of music on the piano could become primary infringements of copyright even when done in private. More fundamentally, the amendment would destroy the present clear differentiation between, on the one hand, copying as a restricted act involving material reproduction and, on the other, the restricted acts of performance in public, broadcasting and including in a cable programme, each of which involves reproduction of an immaterial kind.
I do not favour Amendments Nos. 71, 92 and 110, but I should like to consider the position as regards Amendments Nos. 70, 72, 78, 79, 80 and 92.
Lord Lloyd of Kilgerran: I thank the noble Lord for his remarks about my Amendment No. 72 and also
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about the question of the removal of subsection (7), which is a crucial matter. I have not put forward any arguments about what I consider to be the mischief in subsection (7). However, in order to save time, I shall accept what the noble Lord has said; namely, that he will at least think again about my Amendment No. 72, about Amendment No. 78 in the name of the noble Lord, Lord Mottistone, which deals with the question of leaving out subsection (7), and about my Amendment No. 79 which proposes to substitute for the important subsection (7) my suggested text.
Lord Mottistone: I am most grateful to my noble friend for undertaking to look at the more important amendments that we have been considering. Although he was a little cautious about whether he would do anything, I hope it will turn out in that way. He made a number of remarks with which I did not entirely agree, although I do not really want to go over that ground. It is a matter of interpretation. We shall all read the discussion very carefully. However, I firmly believe that somewhere in this debate there is some vestige of a lack of understanding.
I hope that when my noble friend comes to consider these amendments and this clause, he will want to discuss the subject with people who certainly are more expert than I am in these matters before we reach the next stage of the Bill. It would be very helpful if he could tell me, in view of the fact that there will no doubt be a gap to take account of the Christmas Recess, whether he will be able to undertake such discussions before coming to a conclusion. Will that be a possibility?
Lord Beaverbrook: I hope so. I cannot give an undertaking, but I hope so.
Lord Mottistone: I am grateful to my noble friend. On that double assurance, I beg leave to withdraw Amendment No. 70.
Amendment, by leave, withdrawn.
[Amendments Nos. 71 and 72 not moved.]
6.30 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 73:
Page 9, line 18, at end insert ("Where the work copied or the copy or each of them is an artistic work.")
The noble Lord said: This amendment is designed to protect works covered by subsections in Clause 51. We are dealing with Clause 17(3), but it seems to me that without my amendment, as drafted Clause 51(1)(c) has no meaning, unless Clause 51(1)(b) allows the copying to which reference is made to include making a design document of the article. As the wording stands at the moment, without my amendment that will not be possible since the article is non-artistic, unless it is made clear, as the amendment seeks to do, that the situation is brought within the 2D and 3D interchangeability of Clause 17(3); otherwise, it is just the copy that is an artistic work. It is to help clarify those parts of Clause 51 that I suggest we need this small addition to subsection (3) of Clause 17. I beg to move.
Lord Morton of Shuna: It is probably my fault, but I have great difficulty in understanding how this amendment adds anything to the meaning of the subsection and does not substract from it. The Committee has been referred to Clause 51, which deals with something that is not an artistic work. Clause 17(3) begins:
"In relation to an artistic work".
If I read the amendment aright, it seems that we should have instead:
"In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work where the work copied or the copy or each of them is an artistic work".
One has already started off in the understanding that one is talking of an artistic work. Unless I am not following the argument of the noble Lord at all—and I confess that indeed I am not—I do not see that there is any meaning in this amendment.
Lord Mottistone: Perhaps I should clarify that particular point. When a two-dimensional work which is an artistic work is turned into a three-dimensional work by some technical process, there is a risk that it may be interpreted as ceasing to be an artistic work because it has had a mechanical process applied to it. That is the kind of thing at which the amendment is aimed.
Lord Lloyd of Kilgerran: In the same way as the noble Lord, Lord Morton of Shuna, I too was mystified by this amendment. Having heard the remarks of the noble Lord, Lord Mottistone, which were intended to be helpful, I am even more mystified. Consequently, I cannot support this amendment, at any rate at this stage.
Lord Beaverbrook: If I understand the point, the amendment seeks to ensure that the copyright in an artistic work is infringed by copying not directly from the work itself but from a first generation copy which is not itself an artistic work and therefore, by virtue of Clause 51(1)(a), is not an infringing copy; for example, a drawing copied from a vehicle exhaust pipe which itself was copied from a copyright drawing.
I have no difficulty with this amendment in principle. Indeed, the aim is already achieved by Clause 16(3)(b) which states that a copy of a work may be made "either directly or indirectly" and that it is immaterial whether any intervening acts themselves infringe copyright. As drafted, the Bill therefore achieves exactly the same effect as that intended by the amendment. Clearly that means that this amendment is not necessary.
Lord Mottistone: I am most grateful to my noble friend. I think that he has put his finger on the problem and by carrying us around different parts of the Bill has probably resolved the matter for us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brain Lord Brain moved Amendment No. 74:
Page 9, line 19, leave out ("photograph").
The noble Lord said: This amendment is purely a probing amendment to try to elucidate exactly what is sought by the use of the word "copying" in relation to a photographic work. It may be that the photographic work is the negative, but many artistic photographers set great store by the way in which they print or handle the negative subsequently. It could be said that that is creating another artistic work. However, there is then the further complication that, as artistic photographers are wont to do, they continue to use the same negative but by using a completely different process they obtain yet another version or variant of it.
Where does copying end and the creation of a new work begin? Suppose someone else has seen one of those resulting works and goes out into the same field and wants to take the same snap and again starts playing around with the negative. In such a case where does the infringement begin? Because of the words "does not include", I find the wording of this clause difficult to understand, when it is "another work of the same description of which the subject-matter is the same". We are back to that marvellous word "substantially"—substantially the same.
I am probing the rights that the Government are seeking to allow or to protect. Where does the artistry side of the photographer come in and how is it protected? I beg to move.
Lord Morton of Shuna: I support this amendment and I think it is intended that we should also deal with Amendment 75. The difficulty here is to know what is a copy. If one takes a photograph, or an artist takes a photograph, then somebody else who knows something about photography can say: "That photograph was taken at a certain time of day, in a certain area of sunlight or shadow". Therefore I can repeat that picture by going, for example, at 6 o'clock in the morning, if the light is the same". Does that then constitute a copy? Is that a copy which is not protected? If so, why is it not protected? It seems to me that that would be a straight copy; that type of thing which one would recognise as being a copy, as an infringing copy, apart from this subsection.
This is a difficulty and has been recognised as such by the courts; for example, in a case called, I understand, Bauman v. Fussell, which no doubt the Minister has full instructions on. As I have already said, there is a difficulty here and perhaps the Minister could clear this up.
Lord Hailsham of Saint Marylebone: I should like to express a certain amount of doubt in this matter, because I think we must remember that we are dealing with the granting of a monopoly, as well as a right of property.
I can put it in this way by telling a very simple experience of my own. There was a time, many years ago, when I was able to walk in the hills and mountains of Switzerland. I possessed a camera and I must have taken thousands of pictures in the course of those years. I remember one in particular. There was a particularly beautiful view just above

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Kandersteg, in the Bernese Oberland, of a lake called the Oeschinensee. The beauty consisted in a composition, a natural composition, of a tree with a white mountain in the background, against a further background of blue sky and cloud.
I happen to know, because my brother was similarly interested, that he had taken a photograph from a particular spot. I subsequently discovered that he had learnt this from a commercial photographer who had also taken a photograph of the/same scene, from the same spot. Who was committing a breach of copyright? Furthermore, was there any copyright and, if so, in what? My own view is that neither my brother nor I was committing breaches of copyright, or, at any rate, ought not to have been. We were photographing a view and not copying a photograph of anybody else. We happened to find—partly from our own observation, partly from what my brother had taken and partly from what some original professional photographer had taken—that one particular view, as seen from one certain spot, was a very attractive photograph to take. Is that to be protected by the law of copyright, or not? My view, at the moment, is that it is not.
Lord Lloyd of Kilgerran: I entirely agree with what the noble and learned Lord has said. My reading of the amendment of the noble Lord, Lord Brain, is that what he is trying to do is to stop two people from taking pictures of the same subject; for example, standing on the same spot in Parliament Square and taking a picture of the clock tower of Big Ben. Perhaps I have misunderstood the amendment, but that is my interpretation of it. If I am right, then this proposition is as unacceptable to industry as it is to the general public. It seems to me to be contrary to general copyright law.
Baroness Phillips: It seems to me that we are, once again, making very heavy weather of a rather simple matter. Surely you cannot have a monopoly just anywhere. For example, at a normal wedding there are dozens of amateurs taking pictures from the same angle because it is the best angle. I think it is total nonsense.
I have just met outside one of the Peers, who asked, "Why are they delaying this Bill by all this kind of thing? Is it some kind of a conspiracy to slow matters up and not get it through?" As I understand it, this is not what this Bill is all about. I suggest, in all seriousness, that we should look very carefully at the issue we are particularly concerned about.
6.45 p.m.
Lord Beaverbrook: I am most grateful to the noble Baroness for her remarks and I too should like to see things go a little bit faster. But, on the other hand, this Committee has many important views to express.
The purpose of subsection (4) ensures, for example, that when a tourist takes a photograph of the Tower of London, or in the Bernese Oberland, he is not regarded as copying previous photographs of the same scene. The same principle applies to the person who records the sound of the cuckoo or who films the changing of the guard. These are not to be
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regarded as copies of earlier sound recordings or films of these events.
Perhaps these may be trivial examples, but the question may have some significance in the commercial field, such as in respect of two substantially similar photographs of the same well-known person, the second being inspired by the first.
The amendment of the noble Lord, Lord Brain, would change this situation with regard to photographs. As drafted, the copyright in the photograph is only infringed by directly or indirectly copying the photograph itself. This amendment would place anyone who took a photograph at risk of infringing the copyright in an earlier photograph taken of the same or similar subject; that is, if he had seen the earlier photograph and was influenced by it.
We do not accept that this would be right. The skill in taking a photograph lies in composing the photograph through the viewfinder; selecting the lighting; deciding on the speed, the aperture, the focusing and the type of film, and not merely in selecting the subject matter. I should like to say to the noble Lord, Lord Morton of Shuna, that he has raised some doubts in our minds about the drafting of Clause 17(4). The purpose of this clause is as I have just indicated. However, we should like to look at the drafting again, and the same applies to Amendment No. 75.
Lord Kilbracken: I am normally glad to hear my noble friend Lady Phillips intervene in debates because I usually find myself in agreement with her. However, I was sorry that she intervened in the way she did on this occasion, because I should like to assure her that the matters we are raising are matters that are of very great importance—however small some of them may seem—to those who are engaged in this Committee.
Baroness Phillips: Will the noble Lord give way? If they are of importance, then surely it is essential that the examples given should indicate the importance of the amendment.
Lord Kilbracken: I think that my noble friend is perhaps a little unfair in her remarks because, although it may not seem important to her, I think the fact that we are repeatedly raising these matters must mean that they are important to us.
I should like to draw attention to one other aspect. I am sorry to disappoint the noble Lord, Lord Beaverbrook, by continuing for another minute or two. There is another consideration here, which is that the same photographer may take virtually identical pictures of the same subject. These days photographers expose negatives again and again in order to make sure of producing one good photograph. Indeed, in many cases they will be identical or only very slightly different.
Perhaps I may ask what the position would be where there are almost identical pictures taken at almost the same time, by the same photographer, if he sells the copyright or assigns it in the case of one of them. Is it or is it not the case that he is perfectly free to sell to another buyer the copyright of a virtually identical photograph taken at the same time?
Lord Morton of Shuna: I wonder if I may come in here so that I do not have to deal with Amendment No.75, because sound recording raises certain aspects other than photography. It involves things like phrasing and timing, interpretation and copying from one sound recording to another and may be even more clear than photography.
I should also like to say that I am sorry if the examples that I gave were, in the opinion of my noble friend Lady Phillips, not of sufficient merit. They were intended to have some merit. I am perfectly well aware that there is an impression that perhaps, in the words of Lord Chief Justice Hewart, we have embarked upon a sea that has no shore. But we on this side have every intention of coming to the end as soon as we can.
Lord Beaverbrook: I apologise to the noble Lord, Lord Kilbracken, for the fact that I was about to interrupt. I was just about to comment that his discussion with the noble Baroness was indeed becoming self-fulfilling.
Lord Brain: I thank the Minister for his comments. Having probed, I think that I have established the difference between a tourist, as exemplified by the noble and learned Lord opposite, whom I wanted to protect, and the commercial aspects—which I believe are to be looked at again—and the deliberate intention to copy. On that basis, and thanking everybody who has taken part, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 75 not moved.]
The Deputy Chairman of Committees: I must point out that if Amendment No. 76 is agreed to, I cannot call Amendment No. 77.
Lord Kilbracken Lord Kilbracken moved Amendment No. 76:
Page 9, line 24, leave out from ("includes") to ("the") in line 25 and insert ("producing a still photograph from").
The noble Lord said: I raised earlier in the debate the possibility of producing a still photograph from a single frame of cinematograph film. I then came to Clause 17(5) and I found myself wondering exactly what its purpose is. To that extent, this is a probing amendment and I hope that the Minister will be able to tell me. Subsection (5) states:
"Copying in relation to a film … includes taking a photograph of the whole or any substantial part of any image forming part of the film, broadcast or cable programme."
I understand that that is referring to the production of a still photograph from a cinematograph film, although it is not clear that that is what is meant. My amendment would simplify the position and make it clear by making the subsection read:
"Copying in relation to a … film includes producing a still photograph from the film".
If that is what is meant, it would be better if it were said. I shall be grateful if the noble Lord can confirm that. I beg to move.
Lord Beaverbrook: I am grateful to the noble Lord for this useful amendment which I am happy to accept in principle. As the Bill is drafted, it might well
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be held that the copying of single images in a film or television broadcast photographically is permissible as long as a camera is not used to take the photograph. This was not intended. Deriving a photograph from a film by, for example, contact printing is just as much an act of copying.
The amendment overcomes the difficulty by providing that if a photograph of an image is the resultant product, then producing that photograph amounts to copying. We would, however, like to take a closer look at the drafting than we have so far had time to do; for example, we are a little unhappy about the use of the word "still". I hope that the noble Lord will withdraw his amendment with my assurance that we will bring forward an equivalent proposal at a later stage.
Lord Morton of Shuna: Before my noble friend withdraws the amendment, it occurs to me that "producing a still photograph from" would not cover the situation of taking a small part of the still photograph and making that the copy.
Lord Kilbracken: I am grateful to the noble Lord for again giving me the formula, to which we are becoming accustomed, that he will consider the amendment, improve its drafting and, it is hoped, see it into the statute. Of course, I am perfectly happy to withdraw the amendment on that understanding.
I must say that I could not quite see the substance of my noble friend's comment, in that my amendment as worded—and I am sure that the noble Lord and his advisers will produce a better phrase—would cover either the production of a photograph from the whole frame or of a photograph from part of the frame. I know that this will receive further attention and I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 77 and 78 not moved.]
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No 79:
Page 9, line 29, leave out subsection (7) and insert—
("(7) Storing a work, or a portion of a work, in a computer shall be deemed to be copying the work even when done only when incidentally in the course of displaying the work, or in the case of a computer program, running the program.").
The noble Lord said: I shall not move this amendment, but I should like to associate myself with what the noble Lord, Lord Mottistone, said about further discussions on this matter. I deliberately did not fully put my case, nor did the noble Lord, Lord Mottistone, in relation to leaving out subsection (7) which is of vital importance to industry. I wonder whether it would be helpful to the Minister if I were to write to him, putting my argument in respect of Amendments Nos. 78 and 79 for his further consideration, if, quite rightly, he is unable to say that he can give a time for some kind of conference later on. Subject to that, I shall not move the amendment.
[Amendment No. 79 not moved.]
[Amendment No. 80 not moved.]
On Question, Whether Clause 17 shall stand part of the Bill?
Lord Williams of Elvel: Before we leave Clause 17, I should like to ask a quick and, I hope, simple question of the Minister. Subsection (6) states:
"Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement."
There are methods developing of making copies which are not facsimile in the sense that they are defined in Clause 161, but are of a semi-manuscript nature. I am thinking particularly of the reproduction of music, which is frequently done. Indeed there is now a technique for doing it almost by manuscript, but using blocks. These do not form a facsimile copy as defined by the Bill but, nevertheless, are copies. May I take it that the Bill as drafted covers things other than facsimile copies or, if not, that the noble Lord will look at it?
Lord Hailsham of Saint Marylebone: May I ask my noble friend a question? I think it would be more convenient, as well as more courteous on my part, if I asked him to find out the answer and let me know later. But there is a question in relation to copying which occurred in the course of my professional practice many years ago, which I do not think has been answered to my satisfaction and to which the anśwer ought to be known in any serious consideration of the philosophy of copyright; that is, the use of parody.
I was, in one of my more unsuccessful incursions into the Chancery Division, concerned with this very question and I was not at all sure that my unsuccessful advocacy achieved the right result by its failure. I was concerned with a dramatic sketch. The object of that dramatic sketch was deliberately to send up or parody a rival sketch elsewhere on the stage. For that purpose, it did what undoubtedly is ordinarily covered by the law of copyright. The parody was sufficiently like to be very like indeed, but it was intended not as a way of infringing the intellectual property of the original sketch. It was designed basically as a criticism by way of ridicule of the original sketch. I should like to see some way of protecting parodies, in the sense in which I have described them, from the stigma which was imposed upon my then client by way of an injunction.
Lord Beaverbrook: The noble Lord, Lord Williams, and my noble and learned friend Lord Hailsham raised two interesting points. I have to say that the noble Lord, Lord Williams, is more technically advanced than I am and I shall have to look into the point which he raised, which I think is an important one, because we are trying to make sure that this Bill will cope with the many advances in technology that will no doubt be coming along in the next 20 or even the next 50 years.
Copying in the context of Clause 17(6) means facsimile copying as defined in Clause 161. If copying of a typographical arrangement involves an alteration of the layout, it is not covered. I think that the point of the noble Lord may be going further than that. I shall look into it to see whether there is some aspect that should be considered further.
I shall look into the point raised by my noble and learned friend Lord Hailsham of Saint Marylebone,
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because it is an important one. I shall consider whether we should be covering it in this part of the Bill.
Clause 17 agreed to.
The Earl of Dundee: The Committee may feel that we have reached a suitable stage at which to break. I beg to move that the Committee stage be resumed at 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.1 to 8 p.m.]
Clause 18 [Infringement by issue of copies to the public]:
The Deputy Chairman of Committees (Lord Hayter): I have to inform the Committee that, if Amendment No. 81 is agreed to, I cannot call Amendments Nos. 82 to 87.
Lord Lloyd of Hampstead Lord Lloyd of Hampstead moved Amendment No. 81:
Page 9, line 34, leave out subsection (2) and insert—
("(2) References in this Part to the issue to the public of copies of a work are—

(a) to the act of first putting those copies into circulation for sale;

(b) to the act of distributing those copies for commercial purposes by way of rental, loan, hire, exchange or similar arrangement;

and not to their importation into the United Kingdom.").
The noble Lord said: I venture to suggest that this amendment raises an issue of some importance. The Committee will recollect that during the course of the Second Reading debate attention was drawn from a number of quarters to two major lacunae in the Bill. The first was the question of a levy on blank tapes to deal with the problem of home taping. The second was the question of rental shops.
The amendment has no bearing on the first of those gaps. However, it relates to the second and it is a matter which has strongly exercised the minds of the record industry. What has been happening is that rental shops have been set up all over the country. As I understand it, for the most part those shops are engaged in renting out audio tapes or discs with a view to their subsequently being copied by people and then handed back to the shop. I am also informed—I cannot say that I have witnessed this myself—that in some of those places there are even double cassettes which are provided whereby the process can be facilitated.
The problem has become particularly acute in recent times because of the development of the compact disc. As the Committee will know, those represent a very substantial advance in technology and enable music to be committed to a small disc with extraordinarily good results so far as reproduction is concerned. They also have many other advantages. They are fairly expensive to buy. In the early stages it would seem—the Government took this view in one of their early Green Papers—that there was no suitable facility for copying. That view has now become outdated because there is no question whatsoever that machines capable of copying compact discs on to blank discs are perfectly feasible.

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There are also machines which will translate the contents to tape. The Committee may have seen advertisements which have appeared recently in the press and which advertise double carriage machines which enable the operation to be carried out with great facility.
The effect of such a transfer is that people can go into one of those shops, hire a disc or whatever it may be for a very small sum for one evening, take it away and—assuming that they do not carry out the operation on the premises—transfer the contents in the quietude of their own home. They therefore have at their disposal a new compact disc and thus relieve themselves of the necessity for paying a considerable sum to buy an original version.
Not unnaturally, that is regarded as a severe threat to the industry. I understand that in both Japan and the United States that procedure has already developed into such an important problem that legislation has been passed to prohibit rental shops from that kind of operation as a necessary means of protection.
If the Government were to accede to a clause such as the one which I have ventured to put down, what is perfectly feasibly envisaged is that a voluntary licensing scheme would be entered into on reasonable terms by the industry and the rental shop industry so that the operation could he covered by a fair scheme. The owners of the rights to the disc or whatever it might be and those interested in the right to rent out discs would then be covered by those reasonable arrangements.
The effect of that would be that both aspects of the industry would be suitably protected. The record industry and those owning the copyright in the music and any other material contained in the relevant compact disc (to use that as a general term) would be suitably protected, and at the same time the rental shops would be able to provide the service which they are now providing to the public. However, they would provide it in such a way as would not afford machinery for people simply to tread on the property rights of others to an extent and in a way which would be utterly unacceptable so far as the copyright owners were concerned.
I therefore suggest that the amendment would introduce a considerable measure of justice into the present situation. It would afford reasonable protection to a very important industry which is responsible for a large slice of export trade to other countries and which is therefore of considerable economic importance to this country. At the same time, it would enable the public to have reasonable access to borrowed material on the footing that what they might do with rental material would be governed by the voluntary licensing scheme which would be drawn up. The public would not be party to that scheme. Nevertheless, it would be enforceable between the industry and those who control rental shops.
As the Committee will be aware, there are other amendments which have been set down, at least one of which is virtually identical to the amendment which I have moved. However, I do not think that in
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this particular instance anything turns on the precise wording. That would be a matter to be resolved by further draftsmanship. No doubt those noble Lords who have set their names to subsequent amendments will wish to say something about their own amendments. I do not venture to encroach upon their territory by anticipation. On that footing, I beg leave to move the amendment which is standing in my name.
Lord Williams of Elvel: In speaking to the amendment moved by the noble Lord, Lord Lloyd of Hampstead, it may be for the convenience of the Committee if I speak to Amendments Nos. 82 to 88 as well.
As the noble Lord, Lord Lloyd, has said, this is a major gap in the Bill. There are arrangements which are frequently made for the rental of what is effectively copyright material, and the use that is put to articles which are rented in this manner is not covered by the Bill as drafted. The appropriate way of dealing with this is in the terms of the amendment put down by the noble Lord. As he rightly remarks, it is substantially the same as the amendment we have put down; namely, Amendment No. 82. I am glad to see that this amendment has attracted the names of the noble Earls, Lord Ferrers and Lord Winchilsea.
The commercial exploitation of copyright material by means of renting individual copies of a protected work has been taking place, as the noble Lord, Lord Lloyd of Hampstead, pointed out, on an increasing scale over the past few years. Without the subsistence of a specific rental right in the copyright law, in practice it is not possible for copyright owners to obtain a fair share of the economic proceeds generated by this relatively new and growing use of their material.
Such a right already exists in a number of national copyright laws. As I understand it, such a right exists in the United States, in some countries of Europe and also in Asia. The capacity of the copyright owner to organise the commercial exploitation of his works—in other words to enjoy the fruit of his economic rights so that they are made as widely available to the public as efficiently as possible—is seriously undermined if an amendment such as that moved by the noble Lord, Lord Lloyd of Hampstead, is not included in the Bill.
Perhaps I may turn for a moment to the detailed drafting of the amendments. The noble Lord, Lord Lloyd of Hampstead, has quite rightly pointed out that the amendment we have put down from these Benches is substantially the same drafting as his. In both our paragraph (b) and his paragraph (b) reference is made to,
"rental, lease, hire, exchange or similar arrangement".
"Rental" is quite clear; "lease" is reasonably clear; "hire" simply complements both "rental" and "lease" but "exchange" is a relatively new concept. We do not wish to allow rental shops or any other organisation to get past any legislation relating to rental by a simple process of exchange; in other words, some form of discounting as it is known in the financial markets. "Similar arrangement" covers anything which may look like "rental, lease, hire, exchange".

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Members of the Committee may object that "similar" is not perhaps the right expression under the circumstances, and that it is ill-defined. The courts may have difficulty in interpreting that particular word. Nevertheless, as many noble Lords in Committee have pointed out, this is a piece of legislation which will have to last for a period of time. We wish to ensure that if there are any other arrangements that are made which have the equivalence of "rental, lease, hire, exchange" at least the Bill should cover the possibility that those could be brought into the ambit of the statute.
I turn to Amendment No. 88 in the name of the noble Lord, Lord Mottistone; I believe that it is complementary to the amendments which we have put down. I would certainly support it because computer programs are—and should be specified as such—frequently put out on rental. It would be quite wrong in my view if we left computer programs out of our consideration of this particular amendment.
If pressed, and if our amendment and possibly the amendment of the noble Lord, Lord Lloyd, is required to specify computer programs or films in the way in which the noble Lord, Lord Mottistone, has done in his amendment, I would accept that our amendment in that sense is somewhat defective.
Having said that, this does not alter our basic view that there is a lacuna in the Bill as the noble Lord, Lord Lloyd, has said. Unless that is filled sensibly and properly by the Government we will certainly wish to return to this at a later stage as a matter of principle.
8.15 p.m.
Lord Beaverbrook: If I can possibly help your Lordships by speaking at this stage, in speaking to Amendment No. 81 for the convenience of the Committee I shall speak to Amendments Nos. 82 to 88.
These amendments are intended to provide what is called a rental right. This would give copyright owners the exclusive right to authorise rental operations, such as are now common with videograms.
Rental, rather than sale, is the predominant method of distribution of videograms to the public in all the major markets of Western Europe and North America, and substantial rental of compact discs may also be expected, given their high quality sound reproduction and their resistance to damage by repeated handling. It is argued that there is therefore a need for an explicit right for a video or audio copyright owner to control or to obtain remuneration from commercial rental of his products. This matter was canvassed in the 1985 Green Paper, but the evidence we received at that time did not persuade us that action was necessary.
However, the question of rental right is now again under active consideration by the Government. Apart from computer programs and films mentioned in the amendments of the noble Lord, Lord Mottistone, we need to look at the position of sound recordings. We are also considering whether there should be an exclusive right as proposed in these amendments, or merely a right to equitable remuneration in respect of rental operations. We
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need to consider the role of public libraries who rent out compact discs, cassettes, videos and computer software.
The amendments in the name of the noble Lord, Lord Willis, would do more than provide a rental right. It would give the copyright owner control over all forms of distribution, including sale. The effect would be to make the secondary infringements in Clause 23(b) primary infringements. Whatever our conclusions on rental, we shall certainly not want to go so far as control of other forms of distribution.
I hope noble Lords will feel able to withdraw these amendments in the light of my assurance that the Government are now looking at this issue very seriously and will obviously give careful consideration to the views which have been expressed by the Committee. If we conclude that something should be done, we shall return, either here if humanly possible, or in another place, with firm proposals on his question.
Earl Ferrers: Perhaps I may be allowed to add a few comments as my name is associated with one of the amendments. Indeed, my noble friend Lord Winchilsea and I tabled Amendment No. 82 only to find that the noble Lords, Lord Williams and Lord Morton, had put down precisely the same amendment; therefore, we find ourselves in happy partnership. The noble Lord, Lord Lloyd, put down an amendment to the same effect.
I was glad to hear my noble friend say that he is prepared to consider the matter. For all that, I am not certain that the undertaking he gave was good enough, because there has been no sudden occurrence which affects this particular provision in the Bill. After all, the Bill was drafted only a short while ago and one therefore wonders why my noble friend now says that he will consider the position.
I draw to my noble friend's attention, so that he is fully aware of it, that there is a distinct difference between what happens with the renting of video tapes and the renting of audio tapes. A person rents a video tape in order to enjoy the film; he plays it and takes it back. The renting of audio tapes is totally different because it is principally done in order to copy. As my noble friend recognised, and as the noble Lord, Lord Lloyd of Hampstead, said, this has come about because of the compact disc, which is almost indestructible and, unlike vinyl records or tapes, does not wear out. Therefore, the compact disc can be rented out, not just once but again and again.
My noble friend Lord Winchilsea described on Second Reading how he went into a shop in Tokyo where the copying machines were next to the tills. For 50 pence one rented a disc costing about –12, copied it in the copying machine on to a blank tape and then put the disc back on the shelf again. Nearby somebody else would be queueing up to collect it in order to do the same thing. That is using other people's copyright with the distinct purpose of not paying for it because if, as a result of rental, you can do it by copying then you do not have to buy the original tape and, therefore, you pay nothing to the copyright holder.
Record rental in the United Kingdom is a relatively new phenomenon and it can only grow. At

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present there is at least one rental shop in most towns and cities in the United Kingdom and clearly those shops are closely related to conventional retailing outlets. As the shops do not buy their compact discs direct from the record companies they are not bound by any restrictions in the company's trading terms. That is in marked contrast to a normal record retail outlet, which has a contractual relationship with the record companies.
Record rental really amounts to the unauthorised use of records in commercial businesses. Substantial profits can be made without anything being paid to the owners of the copyright—in other words, the record companies—or to the performers. It runs completely contrary to the established principles of copyright whereby creators benefit from the work that they have created. With these record rental companies being set up, the genuine retailer feels threatened by the rental businesses and all but the most robust of multiple retailers are threatened if the Government do not do something about it. I hope they will.
It is interesting to note that in Japan in 1983 over 30 per cent. of the record industry business was lost in a period of less than a year when the number of rental shops rose from 68 to 2,400. Though they have now introduced rental legislation, the situation has not been fully redressed. It is absolutely vital that unfair businesses are not permitted to set up and enabled to make money by the simple and deliberate method of denying the owners of copyright a return on the property on which they hold a copyright.
Other countries have taken steps to deal with this problem. The noble Lord, Lord Williams, said that the United States have introduced a rental right—and so they have—and other countries such as France, Spain and Portugal have produced procedures to enable producers and authors to have full control over their record rental. We are trying to ensure that the copyright owners—in other words, the record companies—register and licence the businesses who rent out their property. A levy could then be placed on those rentals. I hope that the Government will give more than a cursory look at this because it is absolutely fundamental. If rentals are allowed to go ahead as they are at the moment people will be making money by having a rental business and deliberately denying the owners of the copyright the due reward for their work.
There is every encouragement given to a person to copy a disc for use in his own home, because it costs far less than buying it. The person renting out the disc makes money out of it. The only people to suffer are those who actually own the property—the record companies and performers. They receive nothing, which is manifestly unfair. I hope that my noble friend will be a little more positive. I appreciate the fact that he has agreed to reconsider the position and I hope that he will, because he admits that there is a real lacuna—the word used by the noble Lords, Lord Willis and Lord Lloyd of Hampstead—which must be filled.
Lord Lloyd of Kilgerran: I apologise on behalf of my noble friend Lord Winchilsea and Nottingham
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for not being here today. I also congratulate the noble Earl, Lord Ferrers, for his splendid summary of the mischief which these amendments deal with and I thank the Minister, and agree with him, as to the course he intends to take on the matter.
Lord Willis: I rise first to thank the Minister for his assurance and, secondly, to explain my amendment, which seeks to remove the word "first". It is not that I want to put the copyright owner in a position of dictatorship, but simply that I should like the Government to reconsider the word "first". There is an implication that a reissue, a copy, may not have the full copyright and it is therefore that word that worries me.
May I add this briefly—the noble Earl, Lord Ferrers, the noble Lords, Lord Lloyd of Hampstead and Lord Williams, have made the point that we are not talking about a little gap—we are talking about a yawning chasm. We have a nation of young people growing up—and market research indicates this—and 80 per cent. of young children think it is all right that they should tape. They obtain their records from a library, or somewhere else, and they tape them. They think it is perfectly natural. I would not want to stop that. In fact, I think it is impossible because the flood tide is too strong. However, the Government should bear in mind the sacred words of the noble and learned Lord, Lord Hailsham. If it is worth copying, protect it.
8.30 p.m.
Lord Mottistone: I apologise to my noble friend, but I must make my contribution, although he tried to prevent us from doing so. I applaud him for trying. It is important that my point about computer programs, to which my amendments relate, is made. Amendment No. 85 is a paving amendment for Amendment No. 88, which is the key amendment. I was grateful to the noble Lord, Lord Williams, for his support for the principle of that amendment.
My first point is that, by their very nature, computer programs are susceptible to copying. That applies to many other programmes. My next point is that on the whole a good computer program may be valued at £0800, £1,000, or something like that. That is much higher than the value of the average entertainment programme about which most of my noble friends have been talking. We are talking about money that is being potentially stolen from computer programmers and those who employ them.
Loaning or renting is used increasingly as a legitimate front for wholesale, unauthorised copying. There is an accepted market for effectively licensing most types of software on a rental basis, but it is understood that that is undertaken with the consent of a copyright owner and with the payment of a licence fee on each occasion.
The ability to control rentals or loans under copyright law is a prerequisite for such licensing; hence my Amendment No. 88 which seeks to get around that problem. In a recent case involving the Federation Against Software Theft (FAST) over 1,000 discs containing illegal copies of computer software were seized from a software rental shop. That highlights the danger to the industry if that

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activity grows unchecked. The shop concerned had been previously warned but continued its activities because there was nothing to stop it.
I hope that when my noble friend comes to consider this matter he will look at it more carefully—here I agree with my noble friend Lord Ferrers—than was indicated by his statement. This point is fundamental to the computer industry, which stands to lose millions because its products are so much more valuable than most of the other products which might be treated in the same way.
Lord Williams of Elvel: Before the noble Lord, Lord Lloyd of Hampstead, winds up and decides what he wants to do with this amendment, I should like to press the Minister rather more on the commitment that he has given us. The noble Earl, Lord Ferrers, made a powerful intervention. The noble Lord, Lord Lloyd of Kilgerran, was right to refer to it. Unless I misheard the Minister, he said that he would take this issue back and think about it, and, if it were thought fit, the Government might come forward with a suitable formulation at a later stage of the Bill in either this place or another place.
I wish to put two points to the Minister. First, we are seeking a commitment, not just to look at this matter but to accept the principle of the amendment. Secondly, I have on previous occasions and on previous Bills said that the Opposition do not like the idea of the Government taking back amendments which are moved in this place and producing amendments for consideration in another place.
If an amendment is moved in this place and is taken back by the Government, we expect a government amendment here. We had so much trouble on the Consumer Protection Bill, when the Government did not do that, that I must put these thoughts to the noble Lord in the most serious tone that I can.
We respect the noble Lord's position. He cannot make any commitment to draft an amendment for Report stage, but he must make a commitment—this is what I should like to see—that by the time the Bill leaves this place we shall have had a proper government formulation of the principles contained in the amendments that have been moved this evening.
Lord Beaverbrook: I am not prepared this evening to give a firmer commitment than I have. I too would obviously in principle like to see matters that are brought up in this place, dealt with here. We shall have to undertake a considerable amount of consultation to come up with the right amendment to bring in a rental right, if that is the course that we are to take.
I would not have suggested tonight that we would take this issue back if that were not done seriously. It would have been possible to resist the amendments, and let the Committee make a decision. I have said that we will take the amendments away and look at them seriously.
Earl Ferrers: I too should like to press my noble friend a little further. With the greatest respect, I do not believe that his commitment is enough. He has
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said that he will look at this matter seriously. One would naturally expect that. He must be expected to think about it before the Report stage or we shall put down the same amendments again. I do not think that that is right. We have a Committee stage and we put down an amendment. If the Minister says that he will think about it, it means that he will come up with an amendment on Report. Noble Lords cannot be expected to let the whole matter slide through its passage in this place merely to see whether something may be picked up at a later stage in another place.
This is such an important amendment that it should be put into the Bill. There may be those who would say that the Committee should decide. One is obviously reluctant to do that when my noble friend has said that he will take the matter back. He should give an undertaking that he will consider this matter before the Report stage, or we shall be bound to put the matter down again and to test the opinion of this place. That would be a pity.
There is nothing party political about this issue. It is simple. If we allow rental to continue in the way that it is at the moment, those who have provided the material which is in so much demand will receive nothing. That is why copyright is essential. My noble friend has only that simple matter to consider. I do not see that there need be that amount of consultation. I know that those who are concerned about this matter would be only too happy to enter immediately into consultations with my noble friend if he felt that that was desirable. He must do something before the next stage.
Lord Lloyd of Hampstead: I do not wish to question the Minister's good faith and sincerity after he has given us his assurances, even though to some extent they fall short of what I think was the fully justifiable request made by the noble Earl, Lord Ferrers, for something a little firmer.
There is one aspect of the matter that concerns me somewhat. I venture to ask the Minister whether he will clarify one point in the assurances that he has given. Consultation is an uncertain criterion. It depends upon the area to which it is applied. I imagine that I am justified in thinking that a great deal of consultation on this matter must have gone on before the Green Paper and the White Paper were produced.
It is therefore not unreasonable to suggest that the amount of consultation needed at this stage, in order to embody a reasonable amendment in the Bill from the Government's point of view, would be somewhat minimal. We are faced with the Christmas vacation when the House will be adjourned for some little time. I would not impute the Minister for a moment with any degree of insincerity. However, I ask him to tell us in all sincerity that the consultation he contemplates could comfortably take place between the beginning of the Christmas Recess and when we reassemble, or in whatever time there may be until the next stage of the Bill is inserted into the programme. Otherwise one feels a certain degree of dubiety about the consultations should they extend over a fairly long period.
We may be told in all sincerity that the Government have not yet completed their

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consultation and need to conduct further examination of a complex issue with a number of interests. The matter will spin out. We may find that we are in the very great difficulty of putting this matter forward at Third Reading or allowing it to lapse in the hope of seeing it reappear in another place.
Before I conclude my remarks, I ask the Minister in the most conciliatory spirit whether he is able to add to his assurances. To the extent to which they have been given I express all due gratitude. Can he say whether the consultation that he contemplates can reasonably be encompassed between now and the Report stage?
Lord Beaverbrook: I regret that I am unable to give the noble Lord that assurance this evening. I have gone as far as I can in giving assurances on this issue. That is as far as I can take the matter this evening.
Lord Williams of Elvel: I cannot let the Minister get away with it like that. There has been massive consultation on this principle of rental rights. It has been discussed to and fro—the rights and wrongs, the Green Paper and the White Paper—for a very long time. Consultation is surely a question of a couple of telephone calls. I do not see why the Minister cannot say, "We shall have our consultation but, accepting that the Report stage of the Bill according to the Government business managers will come up somewhere around February, we the Government will be in a position by the Report stage to state our attitude in principle." That would allow noble Lords who may agree or disagree with that attitude to formulate amendments at least on Third Reading and would not allow it to drag on and on, as the Consumer Protection Bill did. That Bill left this House in an unsatisfactory state with a complete gap in it as regards which the Government said, "We shall produce amendments in another place. We have to go through long consultations." Digressing for a moment, the consultations are still continuing on the Code of Practice, Part III, of what is now the Consumer Protection Act.
We cannot allow the Government to hide behind the formula that they have to consult everybody right, left and centre, just to avoid making commitments to come back to noble Lords on Report stage and to say, "This is our formulation," or, "We agree in principle. We are not quite ready but we shall come back at Third Reading with our own formulation". That is the least that Members of the Committee would wish this evening. I must press the Minister to be a little more forthcoming.
Earl Ferrers: My noble friend does not seem to want to be more forthcoming. I think that he should be. This puts me in some slight embarrassment because I do not want to push my noble friend unduly far.
Will the Minister answer this question? Are his discussions to be on whether the principle ought to be included, or will they be over the detail of how the principle ought to be included? If the discussions will be on the principle, I do not see much point in having them. I rather fancy I share the same view as the
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noble Lords, Lord Willis and Lord Lloyd. The principle is quite clear. I do not think there ought to be discussions on the principle. However, if the discussions are on the detail of how best to incorporate the principle that would be fair enough. Will my noble friend assist us on that?
Lord Beaverbrook: My noble friend Lord Ferrers asked me whether I can give him assurances on the principle and the detail. We have to review our policy on this both in principle and in detail, and consultation will be about both aspects.
8.45 p.m.
Lord Airedale: Surely we can have an amendment in this Chamber with the Government doing their best? If they do not get it absolutely perfect, they have a chance in the other House to amend their amendment. That often happens in the other direction. I am sure that noble Lords in this Chamber want this matter dealt with in this House.
Lord Willis: What is puzzling me, and other noble Lords, is this. Why cannot the Government say that by the beginning of February they will have an amendment ready? That is something like six weeks away. As we have heard, they have already had many negotiations and consultations. Why can they not say that? What worries me and other noble Lords is this. Is this a, government formula for dodging the issue? I am not.' saying that in any way to criticise the Minister who I believe is quite sincere in this matter. But we have all been here before, have we not? We all know that there is a formula which says, "We shall take it back. We shall consider it. We shall do this and we shall do that".
We have had an assurance from the Minister that the Government will take it back and look in principle and practice at this matter. But what disturbs me and I am sure my noble friends and others on the opposite Benches, is why the Government cannot say, "It will only take us a month". If they are in trouble with their Civil Service I will draft the amendment for them. There is no problem. I shall do it very quickly. I shall let them have it at the end of next week. What is the problem? Why cannot the Government say, "In one month we shall have it ready"?
Lord Beaverbrook: I have already said that if we were not in some sympathy with the thrust of these amendments we would simply resist them. I have given the commitment that we shall look at them very seriously. If we were not going to do so I might as well resist the amendments and I would not have to waste the time of the Committee by going along the path that I have taken.
Earl Ferrers: Perhaps I may ask my noble friend this question? None of us wants to put him in an embarrassing position. I accept entirely that he wishes to consider it, although it worries me that he says he wishes to consider the principle. But if he wishes to consider it, will he let us know before the Report stage the conclusions of his considerations? Otherwise we are bound to put down a similar amendment at Report stage. That is not the way in which to conduct the business of the House. The

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point of Report stage is to put down a proposal on a different issue and not on exactly the same issue. My noble friend ought to give an undertaking that he will be in touch by the Report stage with those people who have been involved with this amendment to let them know the drift of his thinking. Otherwise we shall be bound to put this proposal down again.
Lord Williams of Elvel: I am very much in sympathy with what the noble Earl, Lord Ferrers, said. I am trying to help because I understand that the Minister is in a difficult position. Will it help the noble Lord if, by ingenious means, we found a later stage in the Bill on which to put down an amendment not dissimilar to this and somehow we contrived to have discussion, not perhaps on the next Committee day but perhaps the day following, when the noble Lord might be able to give us some indication, having consulted all those people he has to consult within the department, of the attitude in principle of the Government? This is what we are looking for. If it will help the noble Lord, I am sure that we can find some procedural method of doing that so that at a later stage in the Committee proceedings the Minister can tell us what the Government's attitude in principle is.
Lord Lloyd of Kilgerran: I strongly support what the noble Lord, Lord Williams, has said. I also agree with much of what the noble Earl, Lord Ferrers, said. What worried me was the Minister's reference to another place. Can he withdraw that now, agree to get something done and not leave it to the other place? That would postpone the matter for a much longer time. I should have thought that it would be a simple matter for him to review the phrase and withdraw his reference to the other place in his undertaking.
Earl Ferrers: Without wishing to weary the Committee, I wish to give my noble friend time to compose his thoughts. I should like to take up the suggestion that the noble Lord, Lord Williams, made. Is there a possibility at a later date but at this stage of the Bill of putting down an amendment on which my noble friend would be able to give his initial views?
I have tabled Amendment No. 174 on the taping of records, which is not the same as rental but incorporates a similar principle whereby people tape because it is convenient for them to do so without having to buy the tape or the record. The copyright owner therefore does not benefit. I suggest that if my noble friend agrees to consider the amendment, he could also at the same time consider Amendment No. 174. I thought that that would simplify the procedures. But perhaps it would be better to leave Amendment No. 174 on the Marshalled List so that my noble friend might be able to expand a little on it. I am sure that the Committee would be accommodating to his views on the amendment, if that would meet with his approval.
Lord Mottistone: I have to add at once that if my noble friend Lord Ferrers brings Amendment No. 174 into the argument, I am totally opposed to that. It defeats the argument completely. I trust that my
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noble friend the Minister will forget that reference. I hope that my noble friend Lord Ferrers will not bring it forward.
Earl Ferrers: I was only trying to be helpful to my noble friend the Minister; but my noble friend Lord Mottistone is trying to be destructive. All I said was that Amendment No. 174 could be the vehicle by which the Minister could get himself out of the hole in which he is. In that respect, I think my comments are helpful.
Lord Beaverbrook: I shall not follow my noble friend Lord Ferrers down that route. I have already said that there are considerable implications to be explored. The Government were not persuaded by the responses to the White Paper that certain adverse consequences could not result. The rental right might in some circumstances act against the public interest. We must be satisfied that that will not be the case. I shall undertake to write by Report stage to those pressing for a decision on this matter setting out the progress of our deliberations.
Lord Kilbracken: Will the noble Lord write similarly to other noble Lords whom he has told in a rather unusual form that he is considering their amendments with sympathy? When he said that before, I suggested that it was a bit unusual. I believe he has accepted one amendment, but there have been many other occasions, perhaps a dozen, when he has said that an amendment was good but that he would like to look at it.
If I have not heard from the Minister about my amendments in enough time to put down amendments, perhaps in a slightly different form, at Report stage, I shall go ahead and do so. In these circumstances I do not think we should feel any guilt about putting down at the next stage amendments that are fairly similar to or even identical with those we have at this stage. We have put off any Division or speaking more forcefully after hearing what the noble Lord said. I hope that any noble Lords who have been told that the Minister is taking amendments away to think about them will put them down again unless they receive satisfaction by that date.
Lord Williams of Elvel: I should like to press the noble Lord a little further. I recognise the position he is in. I refer to what the noble Lord, Lord Lloyd of Kilgerran, said about amendments coming forward in this Chamber rather than in another place. If the noble Lord intends to write before Report stage to those of us present in Committee discussing this important matter regarding the Government's attitude in principle, and if the Government's attitude in principle is sympathetic to the amendments that have been put down—in other words, the Government accept the principle—can we have the noble Lord's assurance that proper government amendments will be tabled in this Chamber and will not be reserved for another place?
Lord Beaverbrook: I have already given the Committee my personal view on that. I hope that we shall be able to do that. I cannot give an undertaking, but the noble Lord will know that that is my own preferred route.
Lord Lloyd of Kilgerran: May I ask the Minister whether, in a phrase that is often used in legal matters, he will use his best endeavours to effect what the noble Lord, Lord Williams, has asked?
Lord Beaverbrook: I have gone as far as I can go this evening.
Earl Ferrers: I am sorry, but I want to ask my noble friend this question. He says that there are certain areas that may be badly affected if this amendment were to be put forward and accepted. Who would be badly affected? It seems to me that those who would be badly affected if this amendment is not accepted are so plain, so obvious and so vast. He has given us no indication of who would be badly affected if the amendment were accepted.
Lord Beaverbrook: My noble friend will remember that I used the words,
"The rental right might in some circumstances act against the public interest".
That is as far as I am going this evening.
Lord Lloyd of Hampstead: We have pressed the Minister pretty hard. One appreciates the difficulty of his position. The Minister is speaking to us, as one would expect, as one of Her Majesty's Ministers in perfectly good faith and sincerity. We ought to proceed on the basis, which I feel is totally justified in the circumstances, especially at this late hour, that it would he inappropriate to pursue the matter further and to divide the Committee.
We have received quite considerable assurances, if not absolutely firm undertakings. We are all now contemplating, in the light of the Minister's last words—or perhaps it was his penultimate remark—that as he contemplates the matter his own personal view is that if the Government came to the conclusion before the Report stage that in principle they did not feel that the public interest was endangered in any way from this development, they would expect to be able to put down an amendment within the appropriate time. However, it is fair to say that he did not give an absolutely firm undertaking in that regard. On that basis, it is reasonable to say to the Committee that it would be inappropriate at this hour to press the matter to a Division. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 82 to 88 not moved.]
Clause 18 agreed to.
9 p.m.
Clause 19 [Infringement by performance, showing or playing of work in public]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 89:
Page 10, line 4, after ("work") insert ("or a recognisable part of the work").
The noble Lord said: This is a fairly small and technical amendment. If I may, I shall speak to Amendment No. 90, which is in the same terms.
Clause 19 deals with the performance of a work in public. It deals only with the playing or showing of the work, to take Amendment No. 89, and the broadcasting of the work, to take Amendment No. 90, which, without the words of the amendment, would mean in normal English the whole work. With a work such as "West Side Story" or any other musical there are many occasions when one song is taken and it becomes a hit. It is broadcast, shown or performed separately from the whole work. It would be better if the Bill made it quite clear that it is the performance of the work or a recognisable part of the work that is a restricted act. I beg to move.
Lord Kilbracken: This is an interesting amendment. It deals with the word "recognisable". That may well be the word we should have been using earlier when in another context we were talking about a substantial part of the work. What really matters is whether the part that is used is extensive enough to be recognisable as a part of that other work. I support my noble friend and suggest that this word should be used instead of "substantial" in earlier passages of the Bill.
Lord Beaverbrook: Clauses 19 and 20 are subject to the general principles set out in Clause 16. Clause 16(3) provides that the restricted acts relate to both the work as a whole or any substantial part of it. We therefore need to read references to "work" in Clauses 19 and 20 as if they also referred to a substantial part of the work. Clearly any substantial part must be a recognisable part. We do not think "recognisable" should replace "substantial" since there may be cases where the part is recognisable but not substantial. For example, "To be or not to be" is clearly recognisable as part of "Hamlet" but is scarcely a substantial part of the work. I would say to the noble Lord, Lord Morton of Shuna, that a song in a musical is a work in its own right.
Lord Morton of Shuna: That is an interesting comment. It may well be significant whether a matter is substantial or recognisable. Rather than test the opinion of the Committee, I shall consider what has been said. I should have thought that there is something to be said for making this Bill understandable to people who are not active practitioners in the copyright courts. I thought that that was its purpose. Just by the addition of a few words the Bill would be made clearer. However, rather than test the opinion of the Committee, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20 [Infringement by broadcasting or inclusion in a cable programme service]:
[Amendment No. 90 not moved.]
Clause 20 agreed to.
Clause 21 [Infringement by making adaptation or act done in relation to adaptation]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 91:
Page 10, line 32, leave out ("by means of pictures").
The noble Lord said: This amendment deals with the definition of "adaptation" in Clause 21. I remind the Committee that we are dealing here with an adaptation that is defined by the word "means", which is exclusive, rather than the word "includes". Therefore we are dealing with a definition which leaves out anything that is not within the definition.
Subsection (3)(a)(iii) states:
"a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical".
One occasionally reads of a newspaper which publishes excerpts or an adaptation of a book. A Sunday newspaper may publish a work in a serialised form, adapting it, shortening it or editing it.
Is that covered by subsection (3)(a)(iii)? It is certainly not covered by subsection (3)(a)(i), that being a translation; it is not covered by subsection (3)(a)(ii), that being,
"a version of a dramatic work in which it is converted into a non-dramatic work".
It is not covered by subsection (3)(b). So what is that type of adaptation covered by? If one takes out the words "by means of pictures", I would suggest that it covers it. I beg to move.
Lord Beaverbrook: Clause 21(3) reiterates the definition of adaptation to be found in the 1956 Act. For a literary or dramatic work it means three things: first, a translation; secondly, a dramatisation of a literary work or the conversion of a dramatic work into a non-dramatic work; and, thirdly, a version of the work in which the story or action is conveyed by means of pictures in a form suitable for reproduction in a book, newspaper, magazine or periodical. It is this last form of adaptation that is of concern here.
The intention of this provision is to cover the case where a story in the form of a literary work is turned into a cartoon strip for use in a book. To tell the same story in picture form is regarded as an adaptation of the literary work, and this requires the consent of the copyright owner.
Because the making of a pictorial form of a literary work may not be copying we make specific provision for a separate restricted act of adaptation. The making of another literary version of a literary work so that it can be included in a newspaper, perhaps by abridging it, will normally constitute copying and so a separate adaptation right is not needed.
The amendment would delete the reference to pictures and thereby lose the sense of what is to be regarded as an adaptation. If the noble Lord's concern is that a literary work may be modified (for example, shortened) to make it suitable for use in a newspaper, and that this should be covered, then I can assure the noble Lord, Lord Morton, that this is done, but as copying within Clause 17 rather than as an adaptation within this clause.
Lord Kilbracken: Does that mean that any form of abridgement or digest of a work is covered in the same way? We all know that the Reader's Digest uses shortened versions of books, and also one of my books was cut down in length by about half in an abridged version. Is that included under an adaptation?
Lord Beaverbrook: Yes.
Lord Kilbracken: In what part of the clause is that shown to be included as an adaptation?
Lord Morton of Shuna: It is interesting, but again I should have thought that there is something to be said for converting this clause of the Bill into something that somebody who does not practise at the copyright Bar and does not work as a publisher might be able to understand. There is some help in the idea—there is certainly very little hope at the moment—that statutes could be understood by the ordinary citizen. Why not make it perfectly clear, if my amendment does not suit, and put in "by means of pictures or otherwise"? I shall read what the noble Lord the Minister has said, and at this stage ask leave to withdraw the amendment.
Lord Beaverbrook: May I just repeat to the noble Lord, Lord Kilbracken, my confirmation that his example is copying and that there is no need for it to come under adaptation?
Lord Morton of Shuna: I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 92 not moved.]
Clause 21 agreed to.
Clause 22 [Secondary infringement: importing infringing copy]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 93:
Page 1 line 3, after ("into-) insert ("or exports from").
The noble Lord said: Amendment No. 93 is to add the words "or exports from" after "a person who … imports into". It is difficult to see why there should not be a prohibition against somebody exporting something which is an infringement rather than only a prohibition against his importing it. No doubt the Minister either now or in a minute or two will have an answer to that. I beg to move.
Lord Beaverbrook: We do not think this amendment would result in a workable provision or that it is necessary to deal with the problem envisaged. I would point out that the unauthorised copying of a copyright work is a primary infringement under Clause 17, and unauthorised possession of an infringing copy in the course of a trade or business, knowing it to be such, is a secondary infringement. Those provisions, together with the corresponding criminal remedies in Chapter VI, provide as much protection as we reasonably can against the unauthorised production and possession of infringing copies, and such copies have to be produced and possessed by someone before they can be exported. So long as the infringing copies remain in the exporter's hands the infringement (or offence) of possession provides all that is needed. If they had moved on down the chain of distribution to, say, a freight handler, export could still be prevented if the copies could be located.
A provision against exporting would thus add very little, and would sit very oddly in copyright law. We

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must remember that copies which might be infringing in the United Kingdom could well not be so in other countries. It is not for United Kingdom law to attempt to control release of copyright material into another market where its circulation is lawful and infringes no copyright.
Lord Morton of Shuna: I shall read with interest what the noble Lord has said. There is of course the question of the convention, and exporting into a country which is covered by the convention. It may well cause difficulty if Britain just allows people to export an infringing copy into a country which is covered by the convention. I shall read what the noble Lord has said and may return to the matter later. At this stage, I would ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Deputy Chairman of Committees (Lord Ampthill): Before calling Amendment No. 94, I should point out the fact that if it is agreed to I cannot call Amendments Nos. 95 to 97.
9.15 p.m.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 94:
Page 11, leave out lines 4 and 5 and insert ("an article or he receives signals originating outside the United Kingdom in electronic or other non physical forms from which an article can in principle be reproduced, and which he knows or has reasons to believe are, an infringing copy of the work, otherwise than for his private and domestic use.").
The noble Lord said: I beg to move Amendment No. 94. We are now in the interesting area known as secondary infringement of copyright. The clause I seek to amend deals with secondary infringement involving importation of the infringing copy. All copyright works can now be represented by a digital code and the code can then be transmitted either by electro-magnetic, radio or optical signals. Works are transmitted across national boundaries with ease and then decoded into the work in which copyrights subsist. The amendment seeks to ensure that the clause is not limited to physical articles but also includes the importation of the signals to which I referred. The noble Lord, Lord Mottistone, has tabled an amendment in practically identical terms. I assume that he will support what I have said so far. I beg to move.
Lord Mottistone: I can support what the noble Lord, Lord Lloyd of Kilgerran, has said in respect of his amendment. It is a matter of opinion as to which of our amendments contain the most suitable wording because they are similar.
As I said on Second Reading, all copyright works can now be represented by a digital code. The code can be transmitted either by electro-magnetic, radio or optical signals. Works are transmitted across national boundaries with ease and then decoded into the work in which the copyright subsists. My amendments are as follows. Amendment No. 95, relating to Clause 22; Amendment No. 106, relating to Clause 23; and Amendment No. 113, relating to Clause 24. There is slightly different wording in each case. They seek to ensure that the clause is not limited
1210
to physical articles but also included is the importation of signals which will convey the articles through the ether. That is an important aspect which the Bill does not cover and it should be included in some form or another.
Lord Williams of Elvel: For the convenience of the Committee, I should like to point out that the grouping which has been proposed by the Government, and which perhaps has not been accepted by the noble Lord, Lord Lloyd of Kilgerran, includes Amendments Nos. 105, 106, 110, 112, 113 and 121. I do not know whether the noble Lord would like to comment on that.
Lord Beaverbrook: The noble Lord mentioned Amendment No. 110. I do not have that amendment in my grouping.
Lord Mottistone: Perhaps I may help the noble Lord and remind him that an earlier grouping included Amendment No. 110. At my request it was altered to the grouping around Amendment No. 70, because that was my amendment. Amendment No. 121 should be dealt with on its own so it was taken out. The latest grouping does not contain those amendments.
Lord Williams of Elvel: I apologise to the Committee and I am grateful to the noble Lord. I believe that I heard the noble Lord, Lord Lloyd of Kilgerran, say that he stands where he is but that he may wish to return to other amendments at a later stage—and quite properly so—even though they are contained in the suggested grouping. The noble Lord, Lord Mottistone, is correct because on looking at my groupings list I see that Amendment No. 110 has been crossed out.
I believe that the noble Lords, Lord Lloyd of Kilgerran and Lord Mottistone, have a serious point. This is an extremely technical matter. But, as we have said throughout your Lordships' Committee, one of the objects of the Bill is to ensure that we keep pace with existing technology and look at technology which may come into existence in the next 10 or 20 years. If precedence is anything to go by, we shall not have another Bill of this nature during that period.
I believe that the Government will wish to consider the amendments carefully, and I should like to support them. I do not think there is anything I can add to what has been said by the noble Lords, Lord Lloyd and Lord Mottistone, other than to say that if the Minister will give a commitment to look again at the amendments, that commitment should be given in a rather more positive manner than were those that he has given hitherto.
Lord Beaverbrook: It is undoubtedly true that in this day and age copyright works can be brought into the United Kingdom in non-physical forms, either in a broadcast or through a cable system. It is argued that the secondary infringement of importation needs to embrace importation in such non-physical forms. Similar arguments are applied with respect to distribution within the United Kingdom.

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We do not believe that any of the amendments numbered 94, 95, 105, 106, 112 and 113 are necessary. First, in regard to importation, it is clear that nothing can be done about the person sending the signals since he is outside our jurisdiction. But this does not mean that works can be imported electronically, for example, as a digital signal, without risk. We must remember that as soon as it is recorded, for example, on magnetic tape or in a computer memory, the person doing so has copied the work and committed a primary infringement. Primary infringement is of course a much more powerful weapon in the hands of the copyright owner, since he does not need to establish guilty knowledge.
Distribution by broadcast or cable within the United Kingdom is a primary restricted act. Downloading or recording of any works in a broadcast or cable programme constitutes copying. Both are primary infringements. As to the viewing of a work on a screen or running a program, I have already indicated to the Committee in our discussions on Clause 17 that we are considering whether these too should be primary infringements.
All other infringements are committed by a positive action, even if only giving permission, as in Clause 25. Here the suggestion is that infringement may be committed by a passive recipient. Is he to be liable if he does nothing with the signal he receives? If so, how is one to distinguish between the willing and the unwilling recipient? If liability is only to arise if he does something with the signal, there is no problem, since he will commit a primary infringement. I hope that these observations go some way to explaining our view on this matter to the Committee.
Lord Mottistone: Perhaps I may make a brief comment. I think that my noble friend has provided quite a good answer, but I shall be interested to read it later in detail. Mention of the passive recipient worries me slightly because the person may be truly passive; for example, perhaps he invites people into his sitting room and receives a beautiful copy of the Mona Lisa on his television screen. He is thus totally passive; he does nothing. He simply receives the picture and others also see it. Everyone gets an opportunity to view it and so no one goes to spend money in Paris.
I should have thought that that was infringing a copyright, so I am not sure that the passivity necessarily excuses the person. I had hoped that my noble friend himself would bear that in mind. However, I am happy to read over what my noble friend has said and to consider what should happen at the next stage of the Bill. Of course it is for the noble Lord, Lord Lloyd, to decide what to do with his amendment.
Lord Lloyd of Kilgerran: I shall adopt the same course as the noble Lord, Lord Mottistone, who has produced practically the same wording that I have in my amendment, which I beg leave to withdraw.
Amendment, by leave, withdrawn.
[Amendments Nos. 95 and 96 not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 97:
Page 11, line 5, leave out ("has reason to believe") and insert ("which is obvious to a reasonable person in the circumstances").
The noble Lord said: I beg to move Amendment No. 97, which stands in my name and the name of my noble friend Lord Morton of Shuna. This is a very important amendment, which to a certain extent argues against the amendment that I was promoting earlier in the proceedings of the Committee. Nevertheless, flexibility is the sign of the intelligent mind and I hope I can demonstrate that we have a certain flexibility.
The problem is that in Clause 22 the expression "has reason to believe" implies that the onus is not on the importer, who is committing a secondary infringement only if he "has reason to believe"—which is a passive expression. We should like to make that phrase rather stronger and have him use what in financial circles is called due diligence to make sure that nothing that he is doing constitutes a secondary infringement. It is a shift from the rather passive understanding "has reason to believe" to the active undertaking that he has to make sure that he really has taken the trouble to find out.
The amendment that was not moved by the noble Lord, Lord Lloyd of Hampstead, went slightly further than our amendment. I am not choosy about which formulation is the right one. Nevertheless, it seems to us that a strengthening of this expression is essential if the integrity of secondary infringement and the integrity of the Bill are to be preserved. I say this is an important amendment because I believe there is a lot of support for it.
If I may repeat something that was said to me by the noble Lord, Lord Campbell of Alloway—who, alas, is not in his place—this amendment is supported by the Society of Conservative Lawyers. I may be damning myself by associating myself with this partly political body but, nevertheless, I feel that I can call upon it to support this Labour amendment. I think that this would command a certain amount of cross-party support in this Committee. I believe it is right and consistent with the thrust of the Bill. Therefore, I commend it to the Committee. I beg to move.
The Earl of Stockton: Secondary acts normally require a guilty knowledge, and in the 1956 Act this was the case. I can see no reason why infringers should be given this loophole by the Government, which would make the task of protecting copyright more difficult. Therefore, I am pleased to support the amendment put forward by the noble Lord, Lord Williams.
Lord Lloyd of Kilgerran: I also support the amendments put forward by the noble Lord, Lord Williams of Elvel. But, if I may say so, I should have been happier with the phrase in the previous amendment which has, alas, now been withdrawn.
I have also discussed this with the noble Lord, Lord Campbell of Alloway. We came to the conclusion that the strengthening of the expression was better in that amendment. Nevertheless, I agree with the noble Lord that a strengthening of the expression is necessary on the lines he has put forward in his amendment.
Lord Beaverbrook: In Amendment No. 97 we are considering what the test of guilty knowledge should be. Under the present Act, it is necessary for the plaintiff to establish that the defendant knew that he was dealing with infringing copies in civil proceedings in respect of the secondary infringements of sale, letting for hire and importation.
Establishing 'guilty knowledge' can be a major and costly obstacle for the plaintiff and can discourage initiation of proceedings. We therefore announced in the White Paper that the requirement for guilty knowledge, in respect of all the secondary copyright infringements, would be relaxed. Although the burden of proof will still be on the plaintiff, it will now only be necessary to show that the defendant had reason to believe that he was dealing in infringing copies.
The alternative wording suggested in Amendment No. 97 would presumably have to replace the phrase "has reason to believe" in many places where it appears in this Bill. I note that the noble Lord has tabled amendments to that effect. Given the number of amendments involved, we would be reluctant to accept any change unless the new formulation was markedly superior. But I am not sure that the alternative offered is better. Indeed, it shifts the test from what the defendant had reason to believe to an assessment of what would be obvious to a reasonable person. A person has reason to believe if he turns a blind eye to the facts, whether they would be obvious to a reasonable person or not.
In this sort of field, where piracy is rife, there should be maximum discouragement from dealing with pirates and no opportunity to escape liability by turning a blind eye. The noble Lord, Lord Williams, suggests that his amendment will indeed strengthen the clause. But, as I have just said, we think—contrary to the opinion of the noble Lord—that the amendment would weaken the clause. The wording of the Bill prevents a blind eye from being turned, whether the facts would be obvious to a reasonable person or not.
9.30 p.m.
Lord Morton of Shuna: Surely Amendment No. 97 puts an objective test in place of a subjective test; and the subjective test, put forward by the Government, is the test of the accused or the person accused of piracy.
It is very easy for somebody who is accused to say, "I did not know; I had no reason to believe". However, it is much more difficult for him to say, "No reasonable person would have recognised this". If,
"which is obvious to a reasonable person in the circumstances"
is such a weak test, I should be interested to know why in the Patents Act 1977, to which we are coming later,
"which is obvious to a reasonable person in the circumstances"
is not amended to put this other test, which the noble Lord the Minister has said is stronger and which I think is much weaker. Perhaps he will deal with that point.
Lord Beaverbrook: There seems to be an absolutely direct difference of opinion as to whether the amendment would strengthen or weaken the clause. In the circumstances, I should like to see what has been said and then consider whether, in our opinion, we have got it wrong or have got it right.
Lord Williams of Elvel: You must have it right or wrong in one place in the Bill and, in our view, this is the right formulation.
Lord Beaverbrook: I accepted that the noble Lord had a view that was absolutely contrary to my own view, and I think that it would be reasonable for us to look at it very carefully.
Lord Kilbracken: Before Report.
Lord Williams of Elvel: I am grateful to the noble Lord for saying that he will look at it very carefully. Would he perhaps go a little further and say that he will look at it very carefully and with sympathy, because in our view—and I think that the noble Lord, Lord Lloyd, is with me on this—this strengthens Clause 22 and is fundamental.
Lord Beaverbrook: I always look with great sympathy at everything the noble Lord has said, and I shall look at this with great sympathy.
Lord Williams of Elvel: Then no doubt the noble Lord will put down an amendment on Report reflecting our point of view. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clause 23 [Secondary infringement: possessing or dealing with infringing copy]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 98:
Page 11, line 8, leave out ("in the course or) and substitute ("for use in").
The noble Lord said: This is an attempt to simplify the Bill. The phrase,
"possesses in the course of a trade or business"
is possibly rather obscure. To possess "for use in" is a much clearer phrase and presumably is what the Government aim to hit at. For those reasons, I beg to move.
Lord Beaverbrook: The Committee will recall that recent legislation, which has proved very effective in reducing the levels of record, video and software piracy, created the new offence of possession in the course of a trade or business. As promised in the White Paper, this is to be extended in Clause 98 to all areas of copyright. A civil remedy is provided here—again, as promised.
If the provision were to be amended as suggested, it would virtually destroy its value. The more serious problem is not the use of infringing copies in trade or business but the possession of infringing copies with a view to onward sale to members of the public. The amendment would allow the pirate to possess vast stocks of pirate records and videos. He does not use

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them in his business; he possesses them in the course of business for sale in street markets to members of the public. We believe that copyright owners need this provision to assist in the fight against piracy and that we should not emasculate it.
Lord Morton of Shuna: That may be so, but if he is possessing them for selling, does he not get caught by Clause 23(b)? I should have thought that the words,
"sells or lets for hire"
would prohibit selling. He uses them, sells them or lets them for hire—and he is caught by one of those three—or he distributes them. But what happens if he possesses for use? I am not sure that the Minister has fully comprehended what "for use in" may cover.
Lord Brain: May I help in this discussion? Let us suppose that somebody is just warehousing on behalf of somebody else and you cannot then trace the other people. You can at least have the man who has them in the course of his trade or business. He is not using them or doing anything to them. He may not even know what is in them, but they are on his premises in the course of his trade or business.
Lord Beaverbrook: In regard to the expression "for use in his business", in the case of a computer program, he may well use it in his business for the purposes of doing his accounts, but that would not cover him in circumstances where he was trading in illicit copies of the computer program.
Lord Morton of Shuna: I shall consider both what the Minister has said and the phrase "possesses in the course of-, which seems slightly dubious. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 99:
Page 11, line 8, after ("trade") insert ("profession").
The noble Lord said: I wish to speak also to Amendments Nos. 102 and 103. Professions too should be covered in the clause. There seems to be some indication at last that something is acceptable to the Government. I beg to move.
Lord Beaverbrook: It is certainly not the intention of the Government that the professions should be treated more favourably when it comes to matters of copyright infringement. We believe the present wording will catch the professional and the businessman alike: any professional practice carried on for reward is a business. We are prepared to look at this again and to make sure this is the case. If it is not, we shall introduce appropriate amendments.
Lord Elwyn-Jones: The Bar would be outraged with that proposition, if I may say so. The Bar is not a trade; it is a most admirable profession. I invite the Minister to look at this again. If he does not, he will lose many friends in this Chamber.
Lord Beaverbrook: Of course we shall look at it again. We intend to look at the three amendments under discussion and see whether we can ensure that what the noble Lord, Lord Morton of Shuna, has described is covered.
Lord Morton of Shuna: In the face of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 100 to 106 not moved.]
Clause 23 agreed to.
Clause 24 [Secondary infringement: making, importing or dealing with article for making infringing copies]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No.107:
Page 11, line 19, at end insert—
("( ) has in his custody or under his control,").
The noble Lord said: This situation seems not to be covered by Clause 24. In view of what has been said about "in the course of" instead of "for use in", it would make more sense to include in the clause the words proposed in the amendment.
Lord Beaverbrook: I think that the noble Lord has a point here and I am grateful to him for bringing it up. However, I think the amendment goes too far. Custody or control is a very wide expression-so wide indeed that a person who was merely looking after an ordinary prerecorded audio cassette for a friend whom he knew was going to copy the cassette would be liable for copyright infringement. The correct expression is, I think, "possession".
In my example this would make the friend liable, not the person with mere physical custody of the cassette. This of itself suggests that the provision is still too wide, and I think it should also be limited to possession in the course of a trade or business.
That is the formulation used in relation to infringing copies and it would he odd if the position were different here. Subject to those limitations, I shall be happy to accept the amendment in principle and if the noble Lord will withdraw the amendment, I shall return with an amendment at a later stage.
Lord Morton of Shuna: As long as the Minister is considering whether criminal activity is a trade or business, I am perfectly prepared to withdraw the amendment so that he may consider the matter. If someone is totally crooked, it is suggested to me that criminality may be a profession. The noble and learned Lord who sits closest to me may not accept that. However, it seems to me to be an activity which, if it is restricted to a trade or business, may be too closely restricted. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No.108:
Page 11, line 22, leave out ("specifically").
The noble Lord said: This amendment is being dealt with along with Amendment No. 109. In the clause as printed, what is being struck at is:
"an article specifically designed … for making copies of that work".
The intention of the amendments is to substitute the words:
"an article designed for making copies of that class of works".

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We suggest that that is what should be struck at, rather than the very restricted meaning which is taken by restricting the article to something specifically designed for making copies of that particular work. I beg to move.
Lord Beaverbrook: In speaking to the amendment which has just been moved I shall also speak to Amendment No. 109. Those amendments concern provisions in the Bill dealing with articles for making copies of a work. The clause principally concerns infringement by making recordings on a commercial scale. It is intended to deal with pirates. As drafted, the clause bites only on articles which are specific to a particular work. An example would be a mould. In our view, that must be right. Indeed, the point was made at Second Reading by the noble Earl, Lord Winchilsea, who expressed astonishment that the generality of machines—typewriters, photocopiers and so forth—which are merely capable of copying should be considered an infringing article. I was able to reassure the noble Earl that that was not what was intended. How could that be so? It would mean that every moulding machine and every photocopier was potentially an infringing article. Even when a person has an article specific to a work and is engaged in infringement, why should all his machinery be caught when much of it could be used for entirely innocent purposes? That would be the effect of the amendments and it is something which I should not wish to accept.
Lord Morton of Shuna: One of the main problems in the area of piracy—especially in piracy of tapes—is that a machine can make a pirate tape and can also make a whole variety of other things. As the Minister will know, it is in the selling of tapes that piracy is most common at the moment. This seems to be a totally adequate precaution to deal with that very common form of piracy. I very much hope that the Government will think about the issue again. However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 109 to 111 not moved.]
[Amendment No. 112 had been withdrawn from the Marshalled List.]
[Amendment No. 113 not moved.]
On Question, Whether Clause 24 shall stand part of the Bill?
Lord Williams of Elvel: Perhaps the Minister can help us on one particular point. We are not particularly happy with the drafting of Clause 24. I think that my noble friend Lord Morton of Shuna has pointed that out. It seems to us that the clause is somewhat ambiguous. We take it that it is not designed to impose a general liability on the manufacturers and suppliers of hardware which can, under certain circumstances, he used for infringement purposes.
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If we refer to Clause 63 we see that the making for private purposes of a recording of a broadcast, a photograph of a television broadcast and so on does not infringe any copyright. The same articles which may be designed or used for infringing purposes can also be used for non-infringing purposes, if I can use that rather grave distortion of the English language.
I shall be grateful if the noble Lord can confirm—if he cannot do so straightaway, perhaps he would like to take it away and study it—that the drafting of Clause 24 does not impose a general restriction on this kind of hardware but only upon hardware which is specifically used for these purposes. I find it hard to distinguish between hardware which is specifically used for the purposes of infringement and hardware which is covered under Clause 63 which is specifically used for non-infringing circumstances. It is the same sort of hardware. I think that is a problem which subsists in the drafting of the clause.
9.45 p.m.
Lord Beaverbrook: The hardware which is specifically used for infringing copyright is covered. I will look at the remarks made by the noble Lord about the drafting of this clause. If we feel that it can be improved we will of course come forward with it at the appropriate time.
Clause 24 agreed to.
Clause 25 [Secondary infringement: permitting use al premises for infringing performance]:
[Amendment No. 114 had been withdrawn from the Marshalled List.]
Lord Kilbracken Lord Kilbracken moved Amendment No. 115:
Page 11, line 29, leave out ("reason to believe") and insert ("reasonable grounds for suspecting").
The noble Lord said: Earlier on we had amendments moved by my noble friend, who did not like the phrase "reason to believe". I feel it would be desirable to make this clause less firm and to substitute for those words "reasonable grounds for suspecting". I shall be glad to hear from the Minister whether he agrees with me. I beg to move.
Lord Beaverbrook: We have already considered the phrase "reason to believe". The "reason to believe" formulation is used throughout the Bill and we would be reluctant to change it in this one clause, Clause 25, without good reason.
As I have explained, a person has "reason to believe" even in cases where he turns a blind eye. We want to catch the person who turns a blind eye but not the person who has "grounds to suspect" but fails to appreciate the significance of the facts. The mere existence of "grounds to suspect" should not be enough for liability. There must be a positive reason, not merely "reasonable grounds", and it must be "reason to believe", not merely "suspect". We think the test we have prescribed is the right one.
Lord Kilbracken: I am quite ready to accept what the noble Lord has said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 116:
Page 11, line 30, leave out from ("work") to end of line 33.
The noble Lord said: I beg to move Amendment No. 116, standing in my name and that of my noble friend Lord Morton of Shuna.
We are dealing here with:
"Secondary infringement: permitting use of premises for infringing performance."
I can understand the provision in Clause 25(1)(a) that if a person permits a place of public entertainment to be used for a performance which infringes the copyright in the work that copyright is infringed unless he does not know and has no reason to believe that the performance will infringe the copyright in the work.
What I cannot understand is the subsequent subparagraph (b), which reads:
"he gives permission gratuitously or for a nominal consideration or for a consideration not exceeding a reasonable estimate of his expenses."
First, I wonder whether that is necessary. Is it that the person who is permitting the use of his premises for an infringing performance—if I may use that expression—should know? He may be doing it as a favour for a friend who does not know, and may say, "Well, you can use my church hall" or whatever it is "for your purposes. You may be committing an infringement but I do not know". I find that phrase a very odd expression.
Paragraph (b) continues:
"for a nominal consideration"—
whatever that means—
"or for a consideration not exceeding a reasonable estimate of his expenses".
We are into a complete Alice in Wonderland situation here. I do not know what a reasonable estimate of the expenses would be. Would it be his average costs, his marginal costs or his overall costs, including the overheads of his establishment? I am worried about paragraph (b) and I wonder whether the Government have thought this amendment through. If they have, I shall be grateful if the Minister can explain what it means. I beg to move.
Lord Kilbracken: I raised this point on Second Reading. I share my noble friend's apprehension, particularly on the last part of paragraph (b) which states:
"for a consideration not exceeding a reasonable estimate of his expenses".
I have a feeling that that should read:
"Not exceeding an estimate of his reasonable expenses".
However, I am not sure that I am right about that.
I pointed out then that this could mean that a person who is entitled to hold a concert in any large public place of entertainment—I mentioned the Albert Hall—is free to go ahead provided the receipts from his sales are not more than all the expenses incurred in putting on the concert, or whatever it may be, including not only the rental of the place of entertainment but also the engagement of the group, or whoever is going to play, and the necessary personnel to work there. However, I think I am right in saying that under the existing legislation only the costs of the place of entertainment can be considered relevant.
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It seems to me that this is a very serious extension of the acts that can be done without infringing copyright, and I hope that the Minister will be able to give some reassurance.
Lord Beaverbrook: This clause restates the existing law in Section 5 of the 1956 Act and the principle goes right back to the 1911 Act. The test in subsection (1)(a) is that common to the other cases of secondary infringement, but the provision in (1)(b) is very different. Provided he charges no more than a nominal amout, a person may knowingly allow a place of public entertainment to be used for an infringing performance without fear of infringement. This seems wrong.
Now that the Committee has identified this problem, the question is: should the remedy be the deletion of paragraph (b), as has been suggested, or should those who are in the business of operating places of public entertainment be strictly liable? In other words, should "or" be replaced by "and"? We are inclined to the view that there is a point here with this amendment, but we would like to reflect further on the alternatives before coming to a final view.
The noble Lord, Lord Kilbracken, has pointed out that there is a difference between Section 5(5)(b) of the 1956 Act, which refers to a reasonable estimate of the expenses to be incurred by him in consequence of the use of the place for the performance, and Clause 25(1)(b) of the Bill, which simply says,
"a reasonable estimate of his expenses"
We believe that what was said expressly in 1956 is necessarily implied in the Bill, but the mere fact that the noble Lord raises the point suggests that we may have been too optimistic. However, I point out that other provisions in the Bill place a limit on the practical extent of the words,
"reasonable estimate of his expenses".
however wide they may appear to be in theory. If the person providing the place of public entertainment—for example, the village hall—also hires the orchestra, he is likely to be liable for the primary infringement of authorising an infringing performance, which would make the niceties of Clause 25 an irrelevance.
On the other hand, if he is not liable for authorising the performance because he believes that the orchestra will restrict itself to non-copyright works, he is likely to have the benefit of the defence contained in Clause 25(1)(a) as well, which, as the clause stands, renders the defence in sub-paragraph (b) irrelevant. That of course leads back to the question which we have been debating, whether we should retain sub-paragraphs (a) and (b) or leave out sub-paragraph (b). Whatever the answer to that question, the point raised by the noble Lord, Lord Kilbracken, must obviously be looked at.
Lord Williams of Elvel: Did I understand the Minister to say that he would bring forward an amendment on Report to substitute "or" at the end of sub-paragraph (a) for "and"? Have I got him right or wrong?
Lord Beaverbrook: I asked, should "or" be replaced by "and"? If that is what the noble Lord said, he heard me correctly.
Lord Lloyd of Kilgerran: The Minister referred to the Copyright Act 1956. The words contained in Clause 25(1)(b) are similar to those in Section 5(5)(b) of that Act. From my notes, which I have worked at for years, I see that we always considered irrelevant that part which referred to terms similar to those contained in Clause 25(1)(b). I should have thought that we could delete sub-paragraph (b).
Lord Williams of Elvel: I am sorry to press the Minister again. Was he asking himself a rhetorical question: should "or" be replaced by "and", or was he expressing the Government's intention?
Lord Beaverbrook: I think that I had better repeat what I said for the benefit of the Committee. The question is, should the remedy be the deletion of sub-paragraph (b), as has been suggested, or should those who are in the business of operating places of public entertainment be strictly liable; in other words, should "or" be replaced by "and"? I said that we are inclined to the view that there is a point in this amendment, but that we should reflect upon it further before coming to a final view.
Lord Williams of Elvel: I am most grateful to the noble Lord for that clarification. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
Clause 26 [Secondary infringement: provision of apparatus for infringing performance, &C.]:
[Amendments Nos. 117 to 120 not moved.]
Clause 26 agreed to.
Lord Mottistone Lord Mottistone moved Amendment No. 121:
After Clause 26, insert the following new clause:
("Persons who do not infringe copyright.
Where copyright in a work is infringed by reproduction, transmission, distribution or reception of the work, then the following persons do not infringe the copyright—

(a) the person who provides the apparatus, telecommunications system or electronic means for such reproduction, transmission, distribution or reception, unless he knew or had reason to believe that the apparatus, telecommunication system or electronic means was being used for infringing purposes:

(b) the person who provides a system or service which is generally available to members of the public for the transmission, conveyance or distribution of, among other things, any work in which copyright may subsist, if such system or service is used by the public to transmit, convey or distribute such a work.").

The noble Lord said: The amendment is designed to extend defences in particular cases. Sub-paragraph (a) of the new clause extends the defence to secondary infringement of copyright works to the innocent provider of reproduction, transmission, distribution or reception apparatus or system used to enable the infringement to take place. For example, the innocent providers of photocopying equipment should not be liable for the unlawful use made of that equipment. Although it covers a different area, the provision is similar to that contained in Clause 25(1)(a). In a sense it is also the reverse of Clause 26(2)(a). It interests me to note that, whereas Clause 25(1)(a) talks about "unless" in the negative, as it were, Clause 26(2)(a) uses the word "if" and deals with the matter in a
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positive way. I do not understand why the wording is different. I wonder whether my noble friend will note that general point for later thought.
Sub-paragraph (b) of the new clause extends the defence to common carriers, including postal or delivery services or providers of public telecommunications systems. Such people have been omitted from these defences although others have been included. There is a good reason to have them in. Once again, the wording could obviously be improved but I hope that my noble friend will accept the principle.
10 p.m.
Lord Beaverbrook: This new clause appears motivated by the worthy concern to ensure that the suppliers of equipment or of various services are not liable for secondary infringement because the equipment or service in question is used in some way in an infringement of copyright. We agree that this should, in general, be so.
If a supplier purports to authorise a restricted act that is a different matter. But in the normal course of events he is not liable quite apart from this amendment. There can be no question that the supplier of, say, photocopying equipment is liable for illegal photocopies made using his equipment, any more than a pen manufacturer can be held responsible for the person who makes illegal copies in long hand. Provision is only needed when we wish to bring suppliers into liability. There is no need for a clause to take them out of liability which does not exist.
In Clause 26 we have made certain suppliers liable—not any manufacturers or retailers but those who supply equipment for specific performances. And specific provision is needed to do this.
I hope that my noble friend will find that a sufficient explanation of our view enabling him to withdraw his amendment.
Lord Mottistone: The explanation sounds fairly plausible but I shall have to read it very carefully to be quite certain that it is all we want. At this stage I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 27 [Meaning of "Infringing copy"):
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 122:
Page 12, line 26, after ("Kingdom") insert ("by the importer").
The noble Lord said: The purpose of this amendment is to raise the question of who is to be the hypothetical manufacturer with whom we are concerned in Clause 27(3). Clause 27(3) deals with an article which is infringing copy that is being imported into the United Kingdom,
"and its making in the United Kingdom would have constituted an infringement".
I ask, by whom? The lower courts in the United Kingdom have suggested that it is the manufacturer—whether in Taiwan, Singapore or wherever—who has to be considered, whereas the courts in New Zealand and the law in Australia consider that it is manufacture hypothetically by the

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importer that has to be considered. There is a distinction. Whichever the Government mean, would it not be clearer to say so? I beg to move.
Lord Beaverbrook: I agree that the noble Lord, Lord Morton, has a point here. This amendment is concerned with the question of the test to be applied in deciding whether an imported article is an infringing copy. It provides that the test should be whether the making of an article in the United Kingdom by the importer of the article would have infringed copyright or breached an exclusive licence.
The Bill does not specify that the making should be by the importer. It does not do so because while this will be the appropriate test in most cases, we were not completely confident that it would give the right result in all cases. However, we should like to give this further consideration. I hope that the noble Lord can withdraw his amendment in the light of my comments, so that we can consider it in order to make sure that we get the matter absolutely right.
Lord Morton of Shuna: Certainly. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 123:
Page 12, line 35, leave out subsection (5).
The noble Lord said: This amendment tackles the question of Clause 27(5) regarding EC copyright law. It either merely states the existing legal principle (in which case it is redundant and unnecessary) or it extends the applicability of EC copyright law principles to UK domestic copyright law. The latter possibility causes great concern. I hope that my noble friend will be able to clarify those points.
The details and extent of copyright laws throughout Europe vary. In general, those in the UK are the highest level within Europe even now. Examples of weaknesses are that computer programs are probably not protected at all under Portuguese copyright law, and computer generated works may fail article copyright protection in many other countries in Europe.
The EC Commission proposals to harmonise the copyright laws in Europe are expected early next year. The need for those proposals indicates that there are existing variations. In my experience with the EC harmonisation takes a very long time indeed. The fact that it is proposing to introduce proposals early next year makes them a good candidate for 1989. One effect of Clause 27(5) might be as follows. It might stop a copyright owner being able to prevent the importation into the UK of infringing copies of a work which were not an infringement in the country of origin within the EC, as a result of weaknesses in the copyright laws in that country. That is the kind of problem which concerns us.
All in all, it seems to me that the time to put this subsection into the Bill is after the harmonisation of the EC law and not before. I beg to move.
Lord Lloyd of Kilgerran: I should like to add to what the noble Lord, Lord Mottistone, said. Unless this subsection is taken out pirates will be able to import counterfeit copies from countries such as Portugal without the copyright owner having
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grounds for redress. Surely that must be against the public interest.
The Earl of Stockton: In the Second Reading debate I expressed considerable reservations about the clause. As I forecast, the Minister retreated behind the bulwarks of the European Communities Act 1972. In supporting my noble friend Lord Mottistone and the noble Lord, Lord Lloyd of Kilgerran, I should like, for the convenience of the Committee, also to speak to Amendment No. 292 in my name and in so doing draw to the Committee's attention an error in the Marshalled List. It should read:
"Page 89, line 25, leave out subsection (5)".
Obviously we are subject to Community rules, but I see no reason why we should anticipate Community legislation as the noble and learned Lord, Lord Denning, said in 1974 of the Treaty of Rome in the famous cider-champagne case of H. P. Bulmer Limited v. J. Bollinger SA. He said:
"The treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English Law. They are not affected by the treaty. But when we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. It is equal in force to any statute. The governing provision is 2(1) of the European Communities Act".
We are not Canutes, so we do not resist an incoming tide. That tide however must be allowed to find its own high-water mark. We do not need to and must not draw the high-water line here. There is no benefit to us in putting subsection (5) into Clause 27. If its provisions are correct the European judges and the European Communities Act will tell us so, as and when a case is argued before them.
Having that subsection there gratuitously will do harm. It will draw the high water mark at a level below which we shall not be able to argue. We shall in effect, if not shooting ourselves in the foot, be putting our own heads into the incoming tide.
Lord Morton of Shuna: It is difficult to see stemming from the decision in the Charmdale case why we have Clause 27(3) and then wipe it out again with Clause 27(5). It is an open invitation to anybody who wants to import an infringing copy to take it through Holland, Portugal, Spain, France, Germany, Denmark or anywhere else as long as it is in the Common Market, if that is what he wants to do. It seems a ludicrous provision to have subsection (3) cancelled out by subsection (5). Surely something more logical could be arrived at.
Lord Beaverbrook: First, I should say to my noble friends Lord Mottistone and Lord Stockton that we are not aware that the European Commission intends to propose harmonisation of copyright law in the early part of next year. The Commission has been considering the matter for many years and it is not at all clear that it will make proposals relevant to the point under discussion here. The amendments would remove all reference to Community law in the context of the importation of works into the United Kingdom.
The Government are aware of the concerns of publishers about the importation of cheap English

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language books. As the law stands following the so-called Charmdale case, a publisher who has an exclusive copyright licence for the United Kingdom cannot use copyright law to prevent imports of books from, say, the United States, when those books have been made with the authority of the copyright owner. The Government said that they would rectify this, and have done so in general terms in Clause 27(3)(b). This provides that an imported article such as a book infringes copyright if its making in the United Kingdom would have breached an exclusive licence. An equivalent provision as regards designs is made in Clause 207. However, we have to take account of our obligations under the treaty establishing the European Communities, which is why subsection (5) of each clause states that articles which may lawfully be imported under a Community right do not infringe copyright. We believe that this formulation is a flexible one, leaving the question of infringement by importation from member states to be decided in the light of Community law and jurisprudence at the time. We certainly do not see it as prejudicing any case that publishers may make for exemption of territorial licensing of books from some or all of the provisions of the treaty.
I should also say that omitting these subsections would have no effect on Community law, since the European treaty has direct effect. On the other hand, such omission could invite complaints from the European Commission that we were legislating contrary to Community law and could also mislead the public as to their legal position in respect of importing copyright works and articles in which design rights subsist.
10.15 p.m.
Lord Williams of Elvel: The noble Lord has said in his reply that the Government have no awareness that the European Community is thinking in terms of harmonising copyright law throughout the Community. Perhaps the Government had no awareness, but other people think that that is in the course of preparation at some of the lower levels of the Commission and may surface before long. He went on to say that we must put this in because we are a member of the European Community; but we are also a member of other bodies.
I accept that we have to adhere to Community law. Clearly, as he said, this clause is designed to overrule the Charmdale decision, which was felt to be unfair on United Kingdom exclusive licensees. While this is in line with the decisions in the lower courts in England, the proposition has not received universal approval either in legislation—again I pray in aid the Australian legislation, where the Act refers to hypothetical manufacturers being the importer—or in the case law of some other countries such as New Zealand. I wonder whether this has been properly thought through.
Nothing I say diminshes my own belief that we have to adhere to Community legislation as and when it comes out. That is a matter of fact. However, it seems to me that when the Community legislation or Community directives come out is the time that we
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should deal with them. We should not provide in a Bill for something we know not of, where the Government have no idea when the legislation might come forward. This is, after all, a statute for the United Kingdom. To give a blanket exoneration to anything that may happen—lawful importation by virtue of any enforceable Community right—whenever that may occur, without having any idea of what might be the consequences, seems rather dangerous. I would invite the Government to think again and to have a closer look at the amendments. Perhaps the noble Lord would like to do so and give us an assurance that he will consider the problem and come back to us to Report.
Lord Mottistone: This is one of the least happy replies my noble friend has given us. He said that there were safeguards such as we were seeking in subsection (3)(b). Those would be splendid safeguards were it not for the fact that subsection (5) states:
"Nothing in subsection (3) shall be construed as applying to an article which may lawfully be imported into the United Kingdom by virtue of any enforceable Community right".
It is a little vague at best and certainly not reassuring. I welcome the fact that my noble friend confirmed that there is no immediate prospect of harmonisation, because that cleared up one point which was on our minds. So there is no general Community law on this. I am not at all reassured that we cannot have imports of infringing copy from other Community countries without a harmonisation with less stringent legislation already, let alone after this Bill has been passed.
I should like my noble friend to give me some sort of undertaking that he will have a look at what the noble Lord, Lord Williams, has said and at what other noble Lords have said in this respect and be ready perhaps to come back with an amendment of his own to water down subsection (5). I would sweep it away because it seems to me that it is too strong, but it may be possible to water it down, or else to give us firm reassurances on this point, which so far my noble friend has not been able to do.
The Earl of Stockton: I should like to remind my noble friend the Minister that the reassurances he has given as far as the other European Community countries are concerned ring a little hollow in the ears of some of us. There is, for example, no great Austrian publishing industry threatening to flood the German market with cheap editions, nor do the French Canadians loom over the French publishing industry, but we have a rival in our own language uniquely among the Community countries, with a home market of 250 million people not only ready but actually waiting for the opportunity to import cheap American editions into this country.
Lord Williams of Elvel: In addition to the question of America, it is not only a question of American imports: it is also imports that may come from Ireland. If this clause is allowed to stand in its present drafting, people may infringe copyright all over the place, import into Ireland and then straight into this country. This is something that the noble Lord must

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take very seriously, and the points have been made from all sides of the Committee.
Lord Beaverbrook: The noble Lord, Lord Williams, said earlier that we are anticipating future Community law. This is not the case. Article 30 of the Treaty has direct effect now and there is no point in pretending that it does not. This has nothing to do with future harmonisation. Omitting subsection (5) will not make any difference whatsoever to the effect of Community law in the United Kingdom.
The noble Lord, Lord Williams, also made the point that copyright harmonisation is being considered at lower levels in the Commission. I said that we do not expect proposals from the Commission early next year. I also said that we do not anticipate proposals relevant to the question under discussion. We are aware that a Green Paper covering only certain copyright issues is being prepared by the Commission, but I repeat that we do not expect it to deal with this matter, which is not a matter for copyright law. It is an internal market question.
Lord Mottistone: My noble friend did not take up my point. What is needed is for him to undertake to have another look at subsection (5) and see whether that could be reworded. It may be that sweeping it away would not make any difference. If that is so, why have it in the Bill? However, that is another subject altogether. There are a lot of people who want greater reassurance on this point, and it would be most reassuring if he could say that he was going to take this away and have a look at it.
Lord Beaverbrook: I am not prepared to go that far, but I am prepared to say that I will of course read very carefully all that noble Lords have said this evening on this point.
Lord Mottistone: I thank my noble friend for having gone as far as he can, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Lord Denham: I think that some impression has been gained that we were only going to go as far as this point. Although it was an erroneous impression, we have made very good progress, and I think therefore that it would be a good idea to finish for tonight. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty minutes past ten o'clock.